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INTERNATIONAL LAW 

APPLIED TO THE 

TREATY OF PEACE 



BY 

STERLING E. EDMUNDS. LL. D. 

LECTURER ON INTERNATIONAL LAW ST. LOUIS UNIVERSITY LAW 

SCHOOL AND FORMER ASSISTANT IN THE DEPARTMENT OF STATE. 



Being a Comparative Analysis of the Covenant 

and Treaty of Versailles of June 28. 1919. 

with the Articles of the Settlement 

and the Applicable Principles 

of the Law of Nations 

Set out in Parallel 

Columns. 



INTERNATIONAL LAW 

APPLIED TO THE 

TREATY OF PEACE 



J 5 BY 
STERLING E£ EDMUNDS, LL. D. 
LECTURER ON INTERNATIONAL LAW ST. LOUIS UNIVERSITY LAW 
SCHOOL AND FORMER ASSISTANT IN THE DEPARTMENT OF STATE. 



Being a Comparative Analysis of the Covenant 

and Treaty of Versailles of June 28. 1919. 

with the Articles of the Settlement 

and the Applicable Principles 

of the Law of Nations 

Set out in Parallel 

Columns 

[|1H O 



INTERNATIONAL LAW 

APPLIED TO THE 

TREATY OF PEACE 



BY 

STERLING E. EDMUNDS, LL. D. 

LECTURER ON INTERNATIONAL LAW ST. LOUIS UNIVERSITY LAW 

SCHOOL AND FORMER ASSISTANT IN THE DEPARTMENT OF STATE. 



Considering the terms of the Treaty of Versailles, as they relate to the 
actual settlements, from the standpoint of International Law, it maybe affirmed 
that no modern treaty of peace has done this system such violence; certainly 
not the cynical treaty of Vienna of 1815. For that treaty, in spite of the wicked- 
ness of its settlements, left us some progressive principles of the utmost value, 
notably that of the freedom of international rivers. Further, its labors in 
behalf of the abolition of the slave-trade were surely worthy of the world's 
approval. 

In the Treaty of Versailles, however, it is difficult to find a single pro- 
gressive principle established, while rule after rule of the law of nations here- 
tofore recognized as instituted for the protection of all states, is ignored 01 
violated where it conflicts with the purposes of the respective Allied and 
Associated Powers. 

The validity of title founded in conquest is not abolished, as it might 
have been, and as the world was led to believe it would be; embodied as it 
was in the preliminaries to negotiation. The recognition of the secret treaties, 
confirming the rights of conquest, stood in the way of this benign possibility. 

The plebiscite, designed to prevent the handing of peoples around like 
flocks of the field, was not established as a principle of the law of nations, 
as the world was also led to expect it would be. There is only a very 
restricted application of it in the terms, and with respect to some territories, 
it is denied altogether. 

Neither is the right of option, designed for the protection of individuals 



of minorities, established. It is permitted in some instances of cession, but 
withheld altogether in others. 

As to the Covenant of the League of Nations, it is a reactionary institu- 
tion rather than a progressive one, in that it ignores the whole modern trend 
toward the establishment of international relations upon the foundations of 
law, rather than upon compromise and expediency. The Covenant of the 
League of Nations looks to the establishment of superintendence over inter- 
national relations by political as distinguished from legal methods. There is 
not a single reference to international law in the whole Covenant that points 
to any definite plan whatever for the progressive improvement and exten- 
sion of that law. In neither the Council of the League of Nations nor in any 
body to function under it, in the proposed settlement of disputes, is there any 
provision for the limitation of their actions within the settled principles of law. 
It is possible for the League of Nations to take up and carry on the achieve- 
ments of the last two decades, starting where the Hague Conferences left off 
and looking to the progressive development of law and the substitution of 
judicial settlements for mere arbitration based on compromise, but such an 
intention is nowhere manifested in the Covenant. In fact there appears to 
be almost a complete abandonment of the lessons of the past. 

Not only does the Treaty of Versailles fail to lend its great sanction to 
the establishment of progressive principles, but it sets aside, so far as future 
validity is concerned, many principles wrung only with the most laborious 
effort from a self-interested world. Thus the rules instituted for the protec- 
tion of private property on land and in territorial waters, and even that pro- 
tecting the private property of prisoners of war, are swept aside. The settled 
distinctions with respect to belligerent rights of destruction, and those limiting 
the exercise of belligerent force within lawful bounds, are confounded. The 
effect of the outbreak of war on treaties i3 thrown into greater confusion than 
ever by reason of inconsistent and contradictory action. 

In the stipulation for the trial and punishment of those German nationals 
found guilty of violations of the laws of civilized warfare a wholesome step 
forward has been taken calculated to sustain these laws in the times to come 
and to promote their observance. 

It was not necessary to the placing of the severest burdens upon Germany 
to have declared that Germany must accept the responsibility for causing all 
loss and damage to which the Allied and Associated governments and their 
nations have been subjected; for, as pointed out in the discussion of the article, 
the laws of war plainly distinguish between lawful and unlawful loss and 
damage. The amount of unlawful loss and damage for which Germany is 
responsible, in view of her utterly barbarous methods of carrying on war, 
probably far exceeds any sum which may ultimately be received. To have 
adhered to these laws in assessing reparation — as it is proposed to invoke 

— 2 — 



the law in the infliction of punishments — would have done incalculable service 
toward the effective establishment of these restraints upon warlike violence. 

In the failure of the Allied and Associated governments to take this 
course, they have established a precedent which future belligerents will not fail 
to act upon in freeing themselves from heretofore fixed limitations upon the 
use of force. It must be borne in mind that one of the sources of Interna- 
tional Law is just such a great international congress as that assembled at 
Versailles; it is these gatherings mainly that make and unmake its principles. 
Such congresses are therefore under a very solemn responsibility to the future 
of the world. 

In the preface to Prof. William E. Hall's scholarly treatise on Interna- 
tional Lav/, which has run through many editions, is the following remarkable 
prophecy, penned in 1889: 

"Looking back over the last couple of centuries we see inter- 
national law at the close of each fifty years in a more solid position 
than that which it occupied at the beginning of the period. Pro- 
gressively it has taken firmer hold, it has extended its sphere of 
operation, it has ceased to trouble itself about trivial formalities, it 
has more and more dared to grapple in detail with the fundamental 
facts in the relations of states. The area within which it reigns 
beyond dispute has in that time been infinitely enlarged, and it has 
been greatly enlarged within the memory of living men. But it 
would be idle to pretend that this progress has gone on without 
check. In times when wars have been both long and bitter, in 
moments of revolutionary passion, on occasions when temptation 
and opportunity of selfishness on the part of neutrals have been 
great, men have fallen back into disregard of law and even into true 
lawlessness. And it would be idle also to pretend that Europe is 
not now in great likelihood moving towards a time at which the 
strength of international law will be too hardly tried. Probably in 
the next great war the questions which have accumulated during the 
last half century and more will all be given their answers at once. 
Some hates, moreover, will crave for satisfaction; much envy and 
greed will be at work; but above all, and at the bottom of all, there 
will be the hard sense of necessity. Whole nations will be in the 
field; the commerce of the world may be on the sea to win or lose; 
national existences will be at stake; men will be tempted to do any- 
thing which will shorten hostilities and tend to a decisive issue. 
Conduct in the next great war will certainly be hard; it is very 
doubtful if it will be scrupulous, whether on the part of belligerents 
or neutrals; and most likely the next war will be great. But there 
can be very little doubt that if the next v/ar is upscrupulously waged, 
it also will be followed by a reaction towards increased stringency 

— 3 — 



of law. In a community, as in an individual, passionate excess is 
followed by a reaction of lassitude and to some extent of con- 
science. On the whole the collective seems to exert itself in this way 
more surely than the individual conscience; and in things within the 
scope of international law, conscience, if it works less impulsively, 
can at least work more freely than in home affairs. Continuing 
temptation ceases with the war. At any rate it is a matter of expe- 
rience that times, in which international law has been seriously 
disregarded, have been followed by periods in which the European 
conscience has done penance by putting itself under straiter obli- 
gations than those which it before acknowledged. There is no rea- 
son to suppose that things will be otherwise in the future. I there- 
fore look forward with much misgiving to the manner in which the 
next great war will be waged, but with no misgiving at all as to the 
character of the rules which will be acknowledged ten years after 
its termination, by comparison with the rules now considered to 
exist." 

Only the first half of this prophecy has been fulfilled; in the pursuit of 
material and illogical objects by the Allied and Associated governments the 
opportunity to realize the latter half has been postponed to a later time. 

The sweeping aside of all restraints by the victors must cause something 
of a shock to those who read the articles of the treaty in the belief that the 
character of imposed peace has changed. 

It is to be hoped, however, that with the cooling of passions and the 
coming of sober second thought to the world the influence of the great inter- 
national jurists of the United States, of France, of Italy and of Great Britain 
will reassert itself toward the readjustment, restatement and restoration of 
the principles of International Law, as the only foundation upon which the 
relations of nations can rest in definite security. 

The following analysis is, of necessity, a mere outline, in which the 
articles of the treaty are paraphrased in the interest of brevity; only a work 
of volumes would permit of a thorough discussion of the multifarious phases 
of the settlement and their relation to and effect upon the law of nations: 



— 4 



International Law and the Treaty of Peace. 



THE TREATY 

Part 1. The Covenant of the League of 
Nations. 

The High Contracting Parties, in order 
to promote international co-operation and 
to achieve international peace and se- 
curity, 

By the acceptance of obligations not to 
resort to war, 

By the prescription of open, just and 
honorable relations between nations, 

By the firm establishment of the under- 
standings of international law as the actual 
rule of conduct among governments, and 

By the maintenance of justice and a 
scrupulous respect for all treaty obliga- 
tions in the dealings of organized peo- 
ples with one another, 

Agree to this Covenant of this League 
of Nations. 



THE LAW. 



Not only does the Covenant fail to pro- 
vide any means for the "firm establishment 
of the understandings of international law," 
but the treaty itself appears to discard many 
vital principles of the customary as well as 
of the conventional law of nations. (See 
Comment opposite Articles 232-287.) 



Article 1. Members of the League shall be 
those signatories named in the Annex and 
also such of these named (as invited) as 
shall accede without reservation by a dec- 
laration deposited with the secretariat 
within two months of the coming into 
force of the treaty. 



Thirty-two States, dominions, and colonies 
mentioned in the Annex as signatories are de- 
clared members (though China, one of the 
states mentioned, refused to sign) and thir- 
teen others are named as those invited to 
become members, making forty-five in all. 

In 1910, Oppenheim, the eminent English 
successor to Westlake as Whewell Professor 
at Cambridge, asserted (Vol. I, Int. Law, pp. 
162-64) that there were then in Europe sev- 
enty-four states possessing international per- 
sonality and therefore members of the Fam- 
ily of Nations. He included the twenty-four 
German states and free towns. He cites 
twenty-one states in the Americas, one in 
Africa and one in Asia. As to China, Siam, 
Afghanistan and Thibet he denied to them 
the status, asserting that they possess inter- 
national personality only for some purpose. 
His list embraced ninety-seven. None of the 
British dominions or colonies is mentioned 
as possessing the essential attributes of an 
international person qualified for association 
in the Family of Nations. (See W. Allison 
Phillips, The Peace Settlements, 1815 and 
1919. Edinburgh Review, July, 1919, as to 
exclusion of German states from the Holy 
Alliance.) 



Any fully self-governing state, dominion 
or colony may become a member if its 
admission is agreed to by two-thirds of 
the Assembly, provided that it shall give 



This paragraph confounds all previously 
accepted principles with respect to Interna- 
tional personality and sovereignty. If it con- 
notes the assumption ipso facto by such do- 



— 5 — 



effective guarantees of its sincere intention 
to observe its international obligations and 
shall accept such regulations as may be 
prescribed by the League as to its military 
and naval forces and armaments. 



minion or colony of a bona fide free and 
independent status, there is nothing incon- 
sistent, but then it would cease to be a do- 
minion or colony. Thus the British empire 
would be broken up. 

Half and part-sovereign states says Op- 
pcnheim (Vol. I, pp. 529-530) may be par- 
ties to international negotiation, but so-called 
Colonial states, as the Dominion of Canada, 
can never be parties to International negotia- 
tion. Thus viewed from the standpoint of the 
Law of Nations, the Dominion of Canada, the 
Commonwealth of Australia, New Zealand 
and the Union of South Africa are British 
territory. (Ibid Vol. I, p, 231.) 

No genuine League of Nations can be 
founded upon such basic inequalities. These 
inequalities appear not only in the organic 
structure from the outset but they appear 
with respect to the treatment of subsequently 
admitted members. 



Any member may, after two years' no- 
tice of its intention so to do, withdraw 
from the League, provided that all its in- 
ternational obligations and all its obliga- 
tions under this Covenant shall have been 
fulfilled at the time of withdrawal. 



The effect of notice of intended withdrawal 
would be immediately to transfer to the 
League the power of inquiry into and de- 
cision upon the whole body of international 
relations of the notifying state. Nor does it 
appear that time would bar any case. 

In a particular case a state may, of its own 
free will, submit to an outside authority for 
decision the quection c? its fulfillment or 
nonfulfillment of certain obligations, without 
derogating in any way from its sovereignty; 
but to transfer the right of final decision over 
the whole of its foreign relations is to yield 
the very essence of external sovereignty. 
Such state would occupy the position of ward 
to the outside authority. (See 1 Halleck, Ch. 
Ill, Sec. 1; Blumtschli, Sec. 64; Vattcl, Ch. 
1; Manning, p. 93; Hall, Sec. 1; 1 Westlake, 
Ch. 3.) 



Article 2. The action of the League shall 
be effected through the instrumentality of 
an Assembly and of a Council, with a per- 
manent Secretariat. 



Article 3. The Assembly shall consist of 
representatives of members of the League. 
It shall meet at stated intervals and from 
time to time as occasion may require, and 
at its meetings may deal with any matter 
within the sphere of action of the League 
or affecting the peace of the world. At 
meetings of the Assembly each member of 
the League shall have one vote and not 
more than three representatives. 



Article 4. The Council shall consist of rep- 
resentatives of the Principal Allied and 
Associated Powers (the United, States, 
Great Britain, Italy, France and Japan), 
together with four other members to be 
selected by the Assembly from time to 



It will be observed that the Assembly, 
which is a representative body, in principle 
at least, is not required to meet within any 
definite period as is the Council (infra Arti- 
cle 4). Although apparently clothed with 
concurrent power, it is in vital respects sub- 
ordinate to the smaller Council. The basis 
of legal equality in any League of Nations 
necessarily requires equality in voting. (See 
Scott, The Hague Peace Conferences, Vol. 
1, p. 37.) 

It will be noted that the principle of equal- 
ity disappears at this point, the five Great 
Powers constituting themselves an indefeasi- 
ble majority. Yet every attempt at organiz- 
ing a League of Nations must start from and 
keep intact the independence and equality of 



— 6 — 



time in its discretion. Belgium, Brazil, 
Spain and Greece are named provisional 
members. 



all civilized states. (Oppenheim (1919), The 
League of Nations, p. 33.) 



With the approval of a majority of the 
Assembly, the Council may name addi- 
tional members whose representatives shall 
have fixed places in the Council. 

The Council shall meet from time to 
time as occasion may require and at least 
once a year, and it may deal with any 
matter within the sphere of action of the 
League or affecting the peace of the 
world. 



The enlargement of the Council can take 
place only by unanimous consent of the 
Council, with the approval of a majority 
of the Assembly. Self-interest will always 
adjust and readjust the balance in the Coun- 
cil. 



Any member not represented on the 
Council shall be invited to send a repre- 
sentative to sit as a member at any meet- 
ing during the consideration of matters 
specially affecting the interests of such 
member. 

At meetings of the Council each mem- 
ber represented shall have one vote and 
not more than one representative. 

Article 5. Except where otherwise provid- 
ed, decisions of the Assembly and the 
Council shall require agreement of all 
members represented at the meeting. 

Matters of procedure, including appoint- 
ment of committees to investigate partic- 
ular matters, may be decided by a ma- 
jority present. 



Although a state whose affairs are under 
consideration by the Council may have a 
representative thereon, the rule of unanimity 
excludes the vote of this added representa- 
tive. (Infra Article 5.) Such representa- 
tive is therefore not an equal in fact. 

While there is equality in the vote of the 
Council, the principle is nullified by inequali- 
ty of representation. 

That is to say, there must be agreement 
as to such representatives present. 



The first meeting of the Assembly and 
the first meeting of the Council shall be 
summoned by the President of the United 
States. 



This would constitute the President of the 
United States the presiding officer of both 
bodies temporarily, at least. 



article 6. The permanent secretariat shall 
be established at the seat of the League. 
The secretariat shall comprise a Secretary 
General and such other secretaries and 
staff as may be required. 

The first Secretary General shall be the 
person named in the Annex; thereafter he 
shall be appointed by the Council with the 
approval of a majority of the Assembly. 

Secretaries and Staff shall be appointed 
by the Secretary General with the ap- 
proval of the Council. 

The Secretary General shall act in that 
capacity at all meetings of the Assembly 
and of the Council. 



As to the possible magnitude of the per- 
sonnel, see infra Comment opposite Article 
282. 



The expenses of the Secretariat shall be 
borne by members in accordance with the 
apportionment of expenses of the Interna- 
tional Bureau of the Universal Postal 
Union. 

rticle 7. The seat of the League is es- 
tablished at Geneva. The Council may de- 



— 7 — 



cide at any time to establish the seat else- 
where. 

All positions under or in connection with 
the League including the secretariat, shall 
be open equally to men and women. 

Representatives of members of the 
League and officials of the League when 
engaged on the business of the League 
shall enjoy diplomatic privileges and im- 
munities- 



Diplomatic privileges and immunities in- 
clude extra-territoriality, that is, immunity 
from local law, civil and criminal, in for- 
eign countries, such immunities extending to 
the agent's residence and to those in his 
suite. Owing to the inviolability attaching 
by the law of nations to the person of a 
diplomatic agent, a crime committed against 
him is punished with exceptional severity 
by the laws of all states. (U. S. vs. Hand, 
2 Wash. 435.) 

The diplomatic immunities extended to all 
officials of the League must be considered 
as deriving from the respect due to the sov- 
ereignty of the League as a distinct politi- 
cal entity, as the immunities of an ambassa- 
dor flow from the respect due to the person 
of the sovereign v/hom he represents. 

Yet Article 7 appears to extend the prin- 
ciple far beyond its application ,even in 
the case of ambassadors in clothing these 
officials with the status apparently anywhere 
"when engaged on the business of the 
League." Diplomatic immunities do not at- 
tach under the law of nations to ambassa- 
dors passing through third countries. They 
can claim no more than courteous treatment. 
(1 Westlake, pp. 273-275; 1 Oppenheim, pp. 
469-470; 1 Twiss, Sec. 222; 1 Wharton, Sec. 
97; 4 Moore, Sec. 643.) 

By the Treaty of Berlin, 1878, and the 
Treaty of London, 1883, instituting the Dan- 
ube Commission, the principle of inviolabil- 
ity was recognized as between the signato- 
ries as attaching to the respective represen- 
tatives, their archives, etc. But it was not 
contemplated as of universal application, as 
in the present instance where League offi- 
cials will be sent into the territories of non- 
members. 



The buildings and other property occu- 
pied by the League or its officials or by 
representatives attending its meetings shall 
be inviolable. 



Article 8. The members of the League rec- 
ognize that the maintenance of peace re- 
quires the reduction of national arma- 
ments to the lowest point consistent with 
national safety and the enforcement by 
common motion of international obliga- 
tions. 

The Council, taking into account the 
geographical situation and circumstances 
of each state, shall formulate plans for 
such reduction for consideration and ac- 
tion of the several governments. 

Such plans shall be subject to reconsid- 
eration and revision at least every ten 
years. 

After these plans shall have been adopt- 



The deduction is a fair one that "the geo- 
graphical situation and circumstances" to 
be taken into account in reduction of arma- 
ments create an exception in favor of the 
Great Powers, whose far-flung empires may 
be thought to require large military and na- 
val establishments. And the Great Pow- 
ers, constituting a dominant force in the 
Council, will formulate plans for themselves 
as well as for other states. 

The hegemony of the Great Powers in the 
League is silently recognized throughout the 
Covenant. Yet historically a Great Power 
of today is not necessarily a Great Power of 
tomorrow. Spain, Portugal and Sweden were 
Great Powers in 1815. Germany, Austria- 



s — 



ed by the several governments the limits 
of armaments fixed therein shall not be 
exceeded without the concurrence of the 
Council. 

Members agree that the manufacture by- 
private enterprise of munitions of war is 
open to grave objections. The Council 
shall advise how the evil effects can be 
prevented. 

Members undertake to interchange full 
and frank information as to the scale of 
their armament, their programs and of 
their industries adaptable to warlike pur- 
poses. 



Hungary and Russia were Great Powers in 
1914. 

And, it may be asked, who will keep in 
order those who are to keep the world in 
order? 



Article 9. A permanent Commission shall 
be constituted to advise the Council on the 
execution of the provisions of Articles I 
and 8 relating to military and naval ques- 
tions. 

Article 1 0. Members of the League under- 
take to respect and preserve as against 
external aggression the territorial integrity 
and existing political independence of all 
members of the League. In case of any 
such aggression or in case of any threat 
or danger of such aggression, the Council 
shall advise upon the means by which this 
obligation shall be fulfilled. 



This would undoubtedly be a military com- 
mission whose functions would include super- 
intending disarmament of states newly ad- 
mitted as well as directing the forces neces- 
sary to vindicate international obligations. 

This Article embraces two distinct obliga- 
tions in the first sentence: viz., "To respect" 
the territorial integrity and existing political 
independence of member states, and to "pre- 
serve" the same as against external aggres- 
sion. 

A state undertaking to respect the terri- 
torial integrity of another contracts to re- 
frain from doing anything that shall in any 
way impair or impeach that territorial integ- 
rity, including its possessions, dependencies, 
colonies, protectorates, leased territories, 
spheres of influence and hinterlands. AH of 
these terms express degrees of territorial 
rights. (1 Westlake Ch. 6.) 

Under existing principles of the law of 
Nations states are under a general duty to 
respect the territory and independence of all 
other states. This duty connotes the right 
of all states to complete immunity from in- 
terference by others. But there are excep- 
tions to this general rule recognized by the 
law. A state may lawfully decline to re- 
spect the territory and independence of an- 
other (1) in self-defense, (2) in accordance 
with treaty stipulations, (3) on grounds of 
humanity, and (4) in behalf of an oppressed 
population. (Davis 4 ed. p. 104, Woolsey 
Sec. 43; Wheaton Sec. 36; Snow p. 57; Hall 
Sec. 88; Lawrence Sec. 74-89; 1 Moore p. 
73.) 

The acceptance of the obligation "to re- 
spect" the territorial integrity and existing 
political independence of member states 
means therefore a mutual engagement not 
to interfere on grounds of humanity or to 
assist an oppressed people or otherwise, with- 
in the territorial limits of member states. This 
obligation would probably forbid extending a 
recognition of belligerency to revolting peo- 
ples within the territories of member states. 

The second obligation in the first sentence 
of Article 10 is that to preserve as against 
external aggression the territorial integrity 



— 9 — 



and existing political independence of mem- 
ber states; so that there is not only the duty 
to abstain from giving any recognition or 
assistance to a revolting portion of a mem- 
ber state, but there exists the duty to aid in 
putting down such revolt should some other 
stato assist the revolting portion. 

It is plainly a renewal of the proposition of 
the Holy Allies at the Congress of Aix-Ia- 
Chapelle, 1818, to stereotype the state pos- 
session, which was promptly rejected by Lord 
Castlereagh as impossible of achievement un- 
til existing wrongs had been righted. (Alli- 
son's Life of Castlereagh, Vol. 5, p. 66.) 



Article II. Any war or threat of war, 
whether immediately affecting members or 
not, is hereby declared a matter of con- 
cern of the League, and the League shall 
take any action deemed wise and effectual 
to safeguard the peace of nations. In case 
any such emergency should arise the Sec- 
retary General shall on the request of any 
member forthwith summon a meeting of 
the Council. 



What, it is pertinent to ask, constitutes 
a threat of war? The extent and variety of 
acts and situations embodying a threat of 
war defy enumeration. It is impossible even 
to catalogue acts and causes cf war. One 
instance of a threat of war, in that it is a 
hostile act, may be cited: namely, any pre- 
mature recognition of belligerency or of in- 
dependence extended to a people struggling 
to be free. (Hall, pp. 39-42; Woolsey, Sec. 
180; Davis, 4th ed. pp. 277-278). 

The term "threat of war" is absolutely un- 
defined in the terminology of the law of na- 
tions. It may be construed to embrace any 
degree of friction in international negotia- 
tion and authorize intervention by the 
League. 



It is the friendly right of each mem- 
ber to bring to the attention of the As- 
sembly or Council any circumstance 
whatever affecting international relations 
which threatens to disturb international 
peace or good understanding. 



It is presumed that the right of the As- 
sembly or Council to obtrude itself into the 
ordinary diplomatic negotiations between 
states would not be needlessly exercised, yet 
the right is apparently contemplated if the 
negotiations do not move smoothly. The 
possession of the untrammeled right of nego- 
tiation is the test of independence. (Manning 
pp. 93-100; Westlake, Chap. VII; 1 Halleck, 
Ch. IV., Sec. 1.) 



Article 12. Members agree that if there 
should arise between them any dispute 
likely to lead to a rupture, they will sub- 
mit the matter either to arbitration or to 
inquiry by the Council, and they agree in 
no case to resort to war until three 
months after the award by arbitrators or 
the report by the Council. In any case the 
award by arbitrators shall be made within 
a reasonable time and the report of the 
Council shall be made within six months 
after submission. 



The obligation embodied in this Article 
has been assumed generally by the civilized 
states or the world in bilateral treaties; and 
since 1899 the Permanent Court of Arbitra- 
tion at The Hague has been successfully oc- 
cupied with a great variety of disputes. It 
is true that in a great majority of these bi- 
lateral treaties, "questions of honor and vital 
interest," that is, political questions, are 
excepted and reserved. There are certain 
political questions that are admittedly not 
arbitrable, as, for example, with us, one in- 
volving the validity of the Monroe Doctrine. 

The principle of delay has been similarly 
embodied in bilateral treaties, providing for 
commissions of inquiry in place of reference 
to arbitration, though it has not been ex- 
tensively applied as yet, except by the United 
States in the so-called Bryan treaties of 1913- 
1914. 



— 10 



Article 1 3. Members agree that whenever a 
dispute arises between them which they 
recognize as suitable for submission to ar- 
bitration, and which cannot be satisfactor- 
ily settled by diplomacy, they will submit 
the whole subject matter to arbitration. 

Disputes as to interpretation of treaties, 
as to questions of international law, as to 
the existence of any fact which, if estab- 
lished, would constitute a breach of interna- 
tional obligation or as to the extent and 
nature of reparation to be made for such 
breach are declared to be suitable for ar- 
bitration. For the consideration of any 
such dispute the Court of Arbitration to 
which such case is referred shall be the 
court agreed on or stipulated in any con- 
vention between the parties. Members 
agree to carry out the award in good faith, 
and not to resort to war against a member 
complying therewith. In the event of fail- 
ure to carry out such award the Council 
shall propose what steps should be taken 
to give effect thereto. 



This Article puts "teeth" in the conven- 
tions of 1899 and 1907 establishing the Per- 
manent Court of Arbitration at The Hague. 
This Court has heard and determined many 
grave controversies, but its determinations 
have been founded largely upon compromise 
and expediency rather than upon the appli- 
cation of the principles of law. It was due 
to an existing sense of the inadequacy of this 
Court as a means for building up a body of 
legal decisions that the American delegation 
to The Hague Conference of 1907 was able 
to bring about the adoption of a draft con- 
vention for the institution of a Court of Ar- 
bitral Justice. The matter of representation 
alone prevented it from being put into imme- 
diate operation, a difficulty easy of solution 
today. 

The convention establishing the Permanent 
Court of Arbitration appears to be the only 
one of the dozen or more of benefacient con- 
ventions signed at The Hague in 1907 that is 
recognized by the Principal Allied and Asso- 
ciated Powers as possessing any binding force 
or as worthy of survival. (See Article 237.) 
There appears to be a distinct break with the 
past twenty years' development of law and 
judicial processes as the pre-eminently de- 
sirable means toward the establishment of 
P~ace, and an espousal of the doctrine of 
force. 



Article 1 4. Council shall formulate and 
submit to members of the League for adop- 
tion plans for a Permanent Court of Inter- 
national Justice. 



The convention referred to (supra, oppo- 
site Article 13) is ready at hand, having 
been accepted by all the civilized states of 
the world. (See Scott, The Hague Confer- 
ences.) 



Article 1 5. Members agree that any dispute 
likely to lead to a rupture, not submitted 
in accordance with Article 1 3, will be sub- 
mitted to the Council. Any party may 
effect submission by giving notice to the 
Secretary General. The parties will com- 
municate to the Secretary General state- 
ments of their case with all revelant facts 
and papers, and the Council may forthwith 
direct the publication thereof. 

The Council will endeavor to effect a 
settlement, and if successful a statement 
shall be made public, giving the facts and 
explanations. If the dispute is not settled 
the Council, either unanimously or by ma- 
jority vote, shall publish a report and rec- 
ommendations. Any member of the League 
or Council may do likewise. 

If the report of the Council is unani- 
mously agreed to by members other than 
the representatives of one or more parties 
to the dispute, such members will not go 
to war with any party complying with the 
recommendation. 

If the Council fails to reach a report 
unanimously agreed to by members other 
than those in dispute, members reserve the 
right to take such action as they consider 
necessary for the maintenance of right and 
justice. 



This Article attempts to deal with disputes 
other than those known as "justiciable," dealt 
with in Article 13. It is realized that some 
of these questions are beyond amicable solu- 
tion. They are outside the realm of law and 
no principle of law or possibility of compro- 
mise can give hope of settlement. In such 
circumstances the League apparently sanc- 
tions a resort to war, after conciliation 
through the medium of the Council has failed. 
The principles embodied in Articles 12, 13 
and 15 are sound; the objection lies in the 
methods of their application. 

What provision is made, it may be asked, 
for cases of self-defense against sudden at- 
tack, as for example, a border raid? Must 
the state assailed submit passively until the 
Council has deliberated upon the question of 
"external aggression" or upon conciliation? 
The right of self-defense appears nowhere to 
he recognized in the sense that it has hereto- 
fore existed. (Hershey, 144-146, and notes.) 



11 



If the dispute between the parties is 
claimed by one of them, and is found by 
the Council, to arise out of a matter which 
by international law is solely within the 
domestic jurisdiction of that party, the 
Council shall so report and make no rec- 
ommendations. 



It will be observed that as to whether or 
not a dispute arises out of a matter "which 
by international law is solely within domes- 
tic jurisdiction" is for the Council to find. 
There is a great variety of things a state 
may do in pursuance of its territorial su- 
premacy, or domestic jurisdiction, which have 
international effect, and which may or may 
not infringe the rights of other states. Thus 
all persons, including aliens, within the terri- 
torial limits of a state are subject to the 
juricdiction of that state, yet the state to 
which the alien owes allegiance may right- 
fully protect him abroad and compel a stand- 
ard of treatment recognized by International 
Law. (See Borchard, Diplomatic Protection, 
etc.) So all exercises of domestic jurisdiction 
having international effect may be held to in- 
volve international concern. Knowing that 
"it is the duty of a good judge to extend his 
jurisdiction," it is conceivable that much ex- 
ercise of domestic jurisdiction having inter- 
national effect might ultimately pass under 
the control of the Council in the application 
of this Article. 



The Council may in any case refer the 
question to the Assembly, and it shall be 
referred to tli2 Assembly at the request of 
either party, if such request be made with- 
in fourteen days after the submission of 
the dispute to the Council. The Assembly 
shall have all the powers of the Council 
conferred in this Article and in Article 12, 
provided that a report made by the As- 
sembly be concurred in by members in 
the Council and a majority of other mem- 
bers of the League other than the parties 
to the dispute. 



The apparent concurrent power of the 
Assembly will be seen by this Article to have 
disappeared, requiring the concurrence of the 
Council to effectuate its action, thus leaving 
the Ccuncil the preponderantly powerful au- 
thority in the scheme. 



Article 1 6. Should any member resort to 
war in disregard of its covenants under 
Articles 12, 13 and 15, it shall ipso facto 
be deemed to have committed an act of 
war against all other members of the 
League, which hereby undertake to sub- 
ject it to the severance of all trade or 
financial relations, the prohibition of all 
intercourse between their nationals and 
the nationals of the Covenant-breaking 
state and the nationals of any other state. 

It shall be the duty of the Council in 
such case to recommend to the several 
governments concerned what effective mil- 
itary, naval or air force the members shall 
severally contribute to the armed forces to 
be used to protect the Covenants of the 
League of Nations. 

Members of the League agree, further, 
mutually to support one another in finan- 
cial and economic measures in order to 
minimize the loss and inconvenience re- 
sulting, and that they will afford passage 
of troops through their territories. 



It is for the Council (or the Assembly with 
the consent of the Council under Article 15) 
to decide when the contingency arises under 
which the duty of invoking and applying 
measures of commercial warfare falls upon 
members. 

The term "resort to war" must be held to 
include defensive and offensive warlike vio- 
lence, as well as war legally declared and war 
in its material sense. (The Three Friends 
(1896) 166 U. S.) The obligations under 
this paragraph are clear and definite. 

The duty of commercial boycott appears 
to arise ipso facto with a determination by 
the Council as to a "resort to war"; the duty 
to contribute armed forces appears to rest 
on a decision of the League ad referendum. 

Whether or not a member contributes to 
the armed forces he shall contribute his share 
toward the financial burdens assumed by 
those states employing their forces against 
the recalcitrant state, and become a passive 
ally at least to the extent of permitting the 
passage of troops across his territory. Such 
assistance constitutes war quite as fully as 
though troops were furnished. 



— 12 



Any member of the League which has 
violated any covenant may be declared no 
longer a member by unanimous vote or 
the Council excluding the vote of the mem- 
ber in disfavor. 



Article 1 7. This Article extends the force 
of Articles 12 to 16 inclusive to non-mem- 
bers of the League, who shall be invited to 
accept the obligations of membership for 
the purpose of the dispute. 

Upon such invitation the Council shall 
immediately institute an inquiry. 



This paragraph clothes the Council with 
jurisdiction over all matters affecting or held 
to affect international relations arising in non- 
member states, with or without the approval 
of such non-members. It necessarily involves 
a denial of the heretofore accepted principles 
of the equality and independence of states. 

There is no limit to the measures that may 
be taken. 



If both parties to the dispute be non- 
members and decline to accept the obliga- 
tions of membership, the Council may take 
such measures and make such recommen- 
dations as will prevent hostilities and re- 
sult in settlement. 



On the whole this Article reduces those 
non-members desiring to retain sovereignty 
and independence to the same condition of 
wardship to the Council as is produced in the 
cases of members other than the Principal 
Allied and Associated Powers. 

The power to be assumed by the Council 
appears to be that of unlimited intervention. 
Consent to the exercise of the power may be 
inferred as to signatories, but it can not be 
inferred as to non-signatory or non-member 
states. The principle of independence would 
vanish from the law of nations under this 
Article. 



Article 1 8. Every treaty or international 
engagement entered into hereafter by any 
member shall be forthwith registered with 
the Secretariat and published. No such 
treaty shall be binding until so registered. 

Article 19. The Assembly may from time 
to time advise the reconsideration of 
treaties which have become inapplicable. 



Article 20. Members severally agree that 
the covenant abrogates all obligations and 
understandings inter se which are incon- 
sistent with the terms thereof, and that 
they will not hereafter enter into incon- 
sistent engagements. Any member bound 
by inconsistent obligations shall take im- 
mediate steps to procure release therefrom. 



The execution of this Article is left to the 
conscience of the members; there is no pro- 
vision for scrutiny into existing treaties of 
alliance and other conventions serving special 
aims, nor is there any criterion by which in- 
consistency may be determined to exist. Thus 
the Anglo-Japanese Alliance, with respect to 
the special interests of those two states in 
Asia, announces as an object the preserva- 
tion of peace. It may be contended by the 
High Contracting Parties that no incompati- 
bility exists; that it is in fact a "regional un- 
derstanding" for securing the maintenance of 
peace. (See Article 21.) 

It is clear that different standards will be 
applied as between the Principal Allied and 
Associated Powers on the one hand, and the 
small states on the other. 



— 13 — 



Article 21. Nothing in this Covenant shall 
be deemed to affect the validity of interna- 
tional engagements, such as treaties of ar- 
bitration, or regional understandings like 
the Monroe Doctrine, for securing the 
maintenance of peace. 



In the first part of this sentence all bilateral 
and multi-lateral treaties of arbitration are 
recognized as possessing continuing binding 
force. (See comment opposite Article 282- 
287.) 

As to the Monroe Doctrine, it is not a 
regional understanding; it is a mere unilateral 
declaration of state policy which has never 
received the recognition of any state as a rule 
of international law. It is, however, founded 
upon the right of self-preservation, which 
right is recognized by international law. (1 
Phillimore, Sees. 210-220; 1 Twiss, Sees. 106- 
108-110; 1 Halleck, Ch. IV, Sees. 1-7, 18- 
27; Wheaton, Sec. 60; Woolsey, Sees. 17-37; 
Davis p. 93.) 

The term "regional understanding" is new 
in diplomatic language and has no history 
from which a definition may be drawn. It 
would appear, however, to embrace a vast 
field of bilateral and multilateral treaties, con- 
ventions and agreements relating to geograph- 
ical areas and to the various degrees of ex- 
isting territorial rights. The aggression of 
all powerful states upon weaker ones, estab- 
lishing protectorates, spheres of influence, 
spheres of interest and hinterlands, and ex- 
acting territory on lease, has been clothed 
invariably in language emphasizing the anxi- 
ety of the aggressor for the maintenance of 
peace and the extension of protection. Such 
is the language of diplomacy, and if accepted 
literally, all such agreements, founded upon 
force and fraud alone, are validated. (See 
1 Westlake, 121-142, for discussion of minor 
territorial rights.) 

This Article evidences merely a continua- 
tion of the stereotyping process, seeking to 
bind down mighty natural forces that no hu- 
man power can hold in check. As a perti- 
nent illustration of regional understanding the 
Lansing-Ishii agreement of 1917 recognizes 
the "special interests" of Japan in China, on 
the ground of contiguity; if the principle of 
equality has any validity whatever China is 
equally entitled to a recognition of special 
interests in Japan upon the same ground. 

These understandings are not like the Mon- 
roe Doctrine, which harbors no aggressive 
designs, but from the materialistic European 
and Asiatic points of view, the Monroe Doc- 
trine is in the same category. 



Article 22. To those colonies and territories 
which have ceased to be under the sover- 
eignty of the states which formerly gov- 
erned them and which are inhabited by 
peoples not yet able to stand by them- 
selves under the strenuous conditions of 
the modern world, there shall be applied 
the principle that the well-being and de- 
velopment of such peoples form a sacred 
trust of civilization and that securities for 
the performance of this trust should be em- 
bodied in this covenant. The best method 



These peoples are perfectly able to stand 
alone if protected against despoilment and 
degradation at the hands of aggressive power- 
ful states. 



— 14 — 



of effecting this purpose is to entrust the 
tutelage of such peoples to advanced na- 
tions, as mandatories on behalf of the 
League. 

The character of the mandate must dif- 
fer according to the stage of development 
of the people, the geographical situation of 
the territory, its economic conditions and 
other similar circumstances. 

Certain communities of the former Turk- 
ish empire have reached a stage of devel- 
opment where their independence can be 
provisionally recognized, subject to the ren- 
dering of administrative advice and assist- 
ance by a mandatory. 

Other peoples, especially those in Africa, 
must be placed under a mandatory respon- 
sible for administration, order, morals, the 
prohibition of the slave-trade and liquor 
traffic, and the prevention of military or- 
ganization among the natives. 

There are territories, such as Southwest 
Africa and certain of the South Pacific 
islands which, owing to sparseness of popu- 
lation, remoteness from civilization or con- 
tiguity to the territory of the mandatory, 
can best be administered as integral por- 
tions of its territory. 

In every case the mandatory shall render 
to the Council an annual report in refer- 
ence to the territory committed to his 
charge. 

The degree of authority, control or ad- 
ministration to be exercised by the manda- 
tory shall, if not previously agreed upon, 
be explicitly defined by the Council. 



A permanent commission shall be con- 
stituted to receive and examine annual re- 
ports and advise as to the observance of 
mandates. 



After the laudable sentiments of the pre- 
ceding paragraphs this is intended to prepare 
the reader for certain exceptions, made nec- 
essary in view of the existence of definite ob- 
ligations in secret treaties and arrangements 
for the distribution of the spoils of war. 

This refers to Asia Minor and conforms 
to the age-long British policy of dominating 
the road to India. The principal community 
referred to is Hedjaz, which is thus created 
as a vassal state of Great Britain. 



This is the paragraph that conceals but 
conforms to secret arrangements for the dis- 
position of German southwest African col- 
onies to France and certain Pacific island 
possessions to Japan. 

It is a mere mandate for annexation. 



With the possible exception of Belgium the 
four Principal Allied Powers, who sit in the 
Council, will alone retain possession of the 
German colonies. They will, therefore, re- 
port to themselves annually and define their 
degrees of control, occupying the dual rela- 
tion of principal and agent in this trust. 

Such a commission can not perform a seri- 
ous function. 



Article 23. Subject to and in accordance 
with conventions existing or hereafter 
agreed upon the members of the League; 

(a) Will endeavor to maintain fair and 
humane conditions of labor for men, wo- 
men and children in all countries; 

(b) Will undertake to secure just treat- 
ment of native inhabitants under their con- 
trol; 

(c) Will entrust the League with gen- 
eral supervision over agreements relating 
to traffic in women and children and in 
opium and other dangerous drugs; 

(d) With supervision of trade in arms 
in countries in which it may be necessary; 

(e) Will make provisions to secure free- 
dom of communications and transit and 
equitable treatment for commerce of all 
members; 



This program, when considered in con- 
nection with Articles 24 and 282 infra, re- 
veals a magnitude of labors and a diversity 
of administrative power, the logical develop- 
ment of which would abolish all conceptions 
of sovereignty and independence among na- 
tions. 



15 — 



(f) Will endeavor to take steps for the 
prevention and control of disease. 

Article 24. There will be placed under the 
direction of the League all existing inter- 
national bureaux if the parties to such 
treaties consent. All such bureaux here- 
after established shall be placed under the 
direction of the League. 

The Council may include as part of the 
expenses of the Secretariat the expenses 
of any bureau or commission placed under 
the League's direction. 

Article 26. Amendments to this covenant 
will take effect when ratified by members 
whose representatives compose the Coun- 
cil and by a majority of the members 
whose representatives compose the Assem- 
bly. No amendment shall bind a member 
which signifies dissent, but in such case it 
shall cease to be a member. 



(See Comment opposite Articles 23, 282.) 



It will be observed that there are no limits 
to the powers which the Council may assume 
under this Article, nor are there any limita- 
tions upon the powers of the Council in the 
whole covenant comparable to an internation- 
al bill of rights. 

The structure contemplates not an associa- 
tion of equals, but the subordination of the 
many to the authority of the few. The over- 
rulling authority is not a diplomatic assembly 
but a small group in which unequal repre- 
sentation exists, combining and confusing 
legislative, executive and judicial power. The 
distinction may be clarified by a quotation 
from Dr. James Brown Scott's The Hague 
Peace Conferences, Vol. 1, pp. 35-36: 

"It must not, however, be forgotten that 
great — indeed radical and essential — dif- 
ferences exist between a parliament and a 
diplomatic assembly. A parliament legis- 
lates for a nation, and by means of proper 
representatives, it legislates for various 
component parts of the nation. Interna- 
tional conferences in which the nations of 
the world are represented, recommend to 
the nations represented, or legislate ad 
referendum. A parliament presupposes 
subordination; a conference equality. A 
parliament binds the dependent; a con- 
ference recommends to the equal and in- 
dependent nations. The parliament, by 
means of majorities, decrees or issues a 
law; the conference, by means of unani- 
mous agreement presents to the nations 
represented, a draft which, when ratified 
by the nations, becomes by the approval of 
the internal and constitutional organs, the 
law of the ratifying nation. When ratified 
by the nations as a whole it becomes jus 
inter gentes, that is, international law in 
the strict sense of the word. At most the 
decree or resolution of a majority binds 
the majority; it does not, and under exist- 
ing conditions, it can not well control an 
individual state." 

Oppenheim, in his three lectures on the 
League of Nations (Supra, p. 36) in 1919, 
declared it essential that the League start 
from the beginning made by the two Hague 
Conferences. This the Peace Conference 
failed utterly to do. 



— 16 



Annex I. Original Members of the League 
of Nations Signatories of the Treaty: 

The United States of Nicaragua 

America Panam» 

Belgium Peru 

Bolivia Poland 

Brazil China 

British Empire Cuba 

Canada Ecuador 

Australia France 

South Africa Greece 

New Zealand Guatemala 

India Portugal 

Haiti Roumania 

Hedjaz Serb, Croat, Slovene 
Honduras State 

Italy Siam 

Japan Czecho-Slovakia 

Liberia Uruguay 

States invited to accede to the Covenant: 

Argentine Republic Persia 

Chili Salvador 

Columbia Spain 

Denmark Sweden 

Netherlands Switzerland 

Norway Venezuela 
Paraguay 

Annex II. Fir3t Secretary General of the 
League of Nations: 

The Honorable Sir James Eric Drum- 
mond, K. C. M. G., C. B. 

Part II. Boundaries of Germany. 

Part III. Political Clauses for Europe. 



SECTION I.— BELGIUM. 



Article 31. Germany recognizes and con- 
sents to the abrogation of the Treaty of 
Neutralization of April 19, 1839, and un- 
dertakes to recognize and to observe any 
conventions which may be entered into by 
the Principal Allied and Associated Pow- 
ers or any of them, in lieu thereof. 



The first part of this Article apparently 
takes cognizance of the continuing force of 
the principle enunciated by the London Con- 
ference of 1871, to the effect that it is an 
essential principle of the public law of Europe 
that no state may release itself from the ob- 
ligations of a multilateral law-making treaty, 
or modify the terms thereof, except with the 
consent of the other contracting parties, pre- 
viously obtained. 

The latter part of the Article looks to 
some new arrangement whereby Belgium's 
territorial situation is to remain permanently 
fixed as a buffer state on the west coast of 
Europe, in which arrangement, however, it is 
anticipated that the United States, as one of 
the Principal Allied and Associated Powers, 
may not take part. 



Article 32. The condominium of Prussia 
and Belgium over Moresnet neutre is 
replaced by the passage of this territory 
under the single sovereignity of Belgium. 



This is in effect annexation of Moresnet 
neutre by Belgium, with the consent of the 
Powers. 

This territory has been in dispute since 
1815 because of lack of agreement as to the 
boundary treaty of that date between the 
Netherlands and Prussia. 

The renunciation of the territory in favor 



— 17 — 



of 3elgium excludes the possibility of a plebis- 
cite, and it does not appear that the inhabi- 
tants are given any right of option. 



Articles 33-34 stipulate for the cession of 
Prussian Moresnet and Eupen and Malmedy 
to Belgium, in which, within six months 
the inhabitants may indicate in writing a 
desire to see the whole or a part of the 
territory remain under German sovereign- 
ity. The League of Nations will decide as 
to any action taken. 



Anciently and until the close of the 18th 
century it was the universal practice of suc- 
cessful belligerents, in cases of conquest and 
forced cession, to subject the inhabitants in 
such conquered or ceded territory forthwith 
to the new allegiance, regardless of their 
wishes or preferences. It is no longer per- 
missible, however, to hand such populations 
around, in view of the development of politi- 
cal principles which recognize the sovereign- 
ty of the people as the governing factor in 
the political and social life of civilized states. 
This development has given rise to the plebis- 
cite, under which the people may indicate en 
masse their wishes as to the disposition of the 
territory. (Funck-Brentano et Sorel (1887), 
157 f. and 335 ff.; 1 Rivier, 210.) 

Although the plebiscite was invoked as 
early as 1552 by Henry II of France, after 
the capture of Toul, Metz and Verdun, its 
fixed position in international practice begins 
in the French revolutionary period. Incon- 
sistent though it may seem, the United States 
has evinced little approval of the doctrine in 
its own practice. 

In the Articles of the treaty referred to it 
must be assumed that the final disposition of 
the territories ceded to Belgium will be in 
accordance with the expressed wishes of the 
inhabitants, though no pledge is given that 
such will be the case, nor is the disposing 
authority expressly bound to observe such 
wishes. 



Article 35. Provision is made herein for the 
appointment, within fifteen days after the 
coming into force of the treaty, of a com- 
mission to delimit the boundaries of the 
German territories going to Belgium. 



If the final disposition of these territories 
is to depend upon plebiscites it seems need- 
less to have provided for a formal delimita- 
tion of boundaries in advance. 



Article 36. With the actual transfer of sov- 
ereignty "over the territories referred to 
above" — that is, upon the coming into 
force of the treaty by ratification — "Ger- 
man nationals habitually resident in the 
territories will definitely acquire Belgian 
nationality, ipso facto, and will lose their 
German nationality. But German nationals 
who became residents in the territories 
after August I, 1914, shall not obtain Bel- 
gian nationality without a permit from the 
Belgian government. 



Complementary to the right of plebiscite in 
the mass of a population, looking to the pro- 
tection of the political rights of a people with 
respect to their territory, there has developed 
for the protection of the minority in case of 
transfer of territory, the so-called right of op- 
tion, under which the individual may retain 
his old allegiance, if he so desires, by the 
formal recording of that election. ( 3 Moore, 
Digest, Sees. 379-380; Boyd vs. Thayer, 143 
U. S. 135.) 

The Article opposite contains the remark- 
able provision that German nationals habitual- 
ly resident in the ceded territory will become 
Bslgian nationals immediately upon the actual 
transfer of sovereignty to Belgium, and will 
lose their German nationality. Since allegi- 
ance to Germany thus ceases Germany's right 
and obligation to protect them likewise 
ceases. That is one of the practical effects. 



Article 3 7. However, within two years Ger- 
man nationals over 18 years of age, in 



It appears that German nationals who have 
become involuntary Belgian nationals may ex- 



18 



such territories will be entitled to opt for 
German nationality, option by the husband 
including the wife, and by the parents, in- 
cluding their children under 18 years of 
age. 

Persons thus opting "must within the 
ensuing twelve months transfer their place 
of residence to Germany." 

They may retain their immovable prop- 
erty in the territories and may carry with 
them their movable property free from ex- 
port or import taxes, with respect to such 
property. 



ercise the option to divest themselves of Bel- 
gian nationality within two years after the 
coming mto force of the treaty and become 
German nationals again, the German nation- 
ality laws to the contrary notwithstanding. 

Ihere is a provision of the German laws 
which declares that a German national ac- 
quiring allegiance elsewhere automatically 
forfeits his German nationality. It is difficult 
to understand how one who has forfeited a 
particular nationality may opt for it; yet since 
the acquisition of new nationality by Germans 
in this case is involuntary, it may properly be 
viewed as void from the standpoint of Ger- 
man domestic law. 

A £*i Ha ™^ eG , n P oi , nted ou * (supra, opposite 
Article 30) the inhabitants of conquered or 
ceded territory may not be compelled to ac- 
cept the new allegiance against their will, 
nationality is a juridical status and is essen- 
tially voluntary. We have contended for the 
principle m various manifestations from the 
foundation of this government, until at length 
?» « bec , on !5 fixed in ^e law of nations. 
(3 Moore s Digest, Sec. 439; Scott, Cases 

To force a new allegiance even upon the 
outcast German, and merely temporarily, as 
m this case, is none the less a violation of 
the law of nations. 

Even the Congress of Vienna, that reac- 
tionary gathering which divided the spoils of 
Europe in 1 SI 5, did not attempt such a thing. 
On the contrary in Article VII of the Treaty 
of Paris of 1815, it is declared that in all 
countries which shall change sovereigns, a 
period of six years shall be allowed to the 
inhabitants, of whatsoever condition or na- 
tionality, "to dispose of their property, if 
they should think fit to do so, and to retire 
to whatever country they may choose." 

The present treaty requires those opting 
for German nationality, within the ensuing 
twelve months, to "transfer their place of 
residence to Germany," which appears to 
mean that they shall quit the soil of Belgium 
physically and return to Germany. Whether 
they can emigrate to the United States or to 
some other place is doubtful, at least before 
they have transferred their residence to Ger- 
many. 

The provision with respect to their immov- 
able property appears to accord with enlight- 
ened practice. 



Article 39. Belgium will assume a portion 
of the public debt on account of such ter- 
ritories to be calculated on the basis 

(a) Of the ratio of the average for the 
three years of 1911, 1912 and 1913 of 
revenues of the ceded territories and the 
average for the same years of the revenues 
of the German empire, or 

(b) Of the same ratio in its application 
to the German state to which such ceded 
territory belonged as of August I, 1914, 
to be determined by the Reparation Com- 
mission. 



In cases of conquest or cession, such as 
this, the rule is embraced in the maxim, res 
transit cum suo onere; that is to say, the 
conquerer succeeding to the rights must also 
assume the burdens running with the terri- 
tory. However, there are exceptions in prac- 
tice. As to the public debt he need not share 
in that portion imposed for the prosecution 
of the war; and the calculation of the debt 
to be assumed by Belgium properly refers to 
the pre-war period. The portion to be as- 
sumed conforms to enlightened practice. 

Nothing is said, however, concerning other 



— 19 



However, Belgium shall acquire all prop- 
erty and possessions situated in such terri- 
tory, belonging to the German empire and 
states, including the private property of 
the former German emperor and other roy- 
al personages, free from any obligation to 
make compensation or to allow credit for 
same in the financial statement. 



contractual obligations running with the ter- 
ritory, and it must be inferred that these are 
assumed subject to the law with respect to 
same. (1 Moore, p. 334; 1 Westlake, p. 75; 
Scott, Cases, 85.) 

An invasion of the law of inviolability of 
private property occurs in the Article in ques- 
tion and that relates to the taking over by 
Belgium of the private property of the former 
German emperor and other royal personages, 
along with public property. A century ago 
no distinction was made between the private 
property of the sovereign and the domains of 
the state. Napoleon, for example, appropri- 
ated the private property of the Elector of 
Hesse-Cassel. 

Though the property of a monarch is as- 
similated to that of the state, and as such 
devolves on the successor, the private prop- 
erty of a sovereign or other head of the 
state in his personal capacity, is under the 
protection of the principle of the inviolabil- 
ity of private property quite as fully as that 
of the individual subjects. (Phillipson, Ter- 
mination of War, etc., p. 321.) 



SECTION II.— LUXEMBURG. 



Articles 40-41. Germany renounces the 
benefit of various treaties with Luxemburg 
and recognizes its withdrawal from the 
German Zollverein; agrees to the termina- 
tion of the regime of neutrality and ac- 
cepts in advance any arrangements to be 
made by the Allied and Associated Powers 
continuing the Grand Duchy as a buffer 
state. Germany also recognizes the Grand 
Duchy as sharing in the commercial ad- 
vantages to be enjoyed by the Allied and 
Associated Powers. 



This is a purely political arrangement, de- 
signed to take Luxemburg from under the 
influence of Germany's commercial and polit- 
ical system. 



SECTION III.- 



-LEFT BANK OF THE 
RHINE. 



Articles 42-44. Fortifications either on the 
left bank of the Rhine or on the right bank 
to the west of a line drawn 50 kilometers 
to the east of the Rhine is forbidden, as 
are military manoevres and the assembly 
of armed forces in such area. 

Violation of these terms shall be regard- 
ed as a hostile act against the Powers 
signatory of the treaty, and as calculated 
to disturb the peace of the world. 



In this arrangement, looking to the pre- 
vention cf Germany ever again possessing a 
strategic frontier against France, it will be 
observed that all states signatory of the 
treaty, including those neutral in the Great 
War, should they ratify it, are to be bound 
by this provision. It is in effect the neutral- 
ization of such portion of Germany under a 
world guarantee. 



SECTION IV.— SAAR BASIN. 



Article 45. As compensation for the de- 
struction of coal mines in the north of 
France and as reparation Germany cedes 
to France in full and absolute possession, 
with exclusive rights of exploitation, un- 
encumbered and free from all debts and 
charges, the coal mines of the Saar Basin. 



This Article disregards utterly the rights 
of private property to the extent that the 
Saar Basin mines are privately owned, and is 
in effect an act of confiscation in violation of 
the spirit of law. (See Comment, Article 
74.) 



— 20 — 



It will be for Germany to indemnify the 
proprietors. 



Article 46. The extent of France's rights in 
the Saar Basin mines is set out by refer- 
ence to Chapter I of an Annex. French 
ownership is extended to deposits for 
which concessions may or may not have 
been granted, whether private or public 
property, with the right of working, not 
working or transferring the right to work 
the mines; all accessories and subsidiaries, 
including plant and equipment, by-prod- 
uct plants, electric lines, buildings, dwell- 
ings, schools, hospitals, and all other prop- 
erty enjoyed by the present owners, go 
with the mines to France, free from all 
debts and charges. Germany must pay 
over any sums due employes on account 
of pensions for old age or disability. 

Workmen of French nationality may be 
introduced into the region and they shall 
have the right to belong to labor unions. 

France shall have the right to establish 
and maintain schools for its employes, and 
of giving instruction in the French lan- 
gauge. It may also maintain hospitals, dis- 
pensaries, and other charitable and social 
institutions. 

France shall enjoy complete liberty with 
respect to the distribution, dispatch and 
sale prices of the products of the mines. 

The government of the Saar Basin is 
provided for in Chapter II of an Annex 
referred to in Article 46. It will be en- 
trusted to a Governing Commission of five 
members chosen by the Council of the 
League of Nations, to include a citizen of 
France, a native of the Saar Basin who is 
not a citizen of France, and three mem- 
bers belonging to three countries other 
than France or Germany; appointed annu- 
ally. One of the five will be designated 
as Chairman and he will act as the Execu- 
tive. 

The Commission shall have all the pow- 
ers hitherto belonging to the German Em- 
pire, Prussia and Bavaria in such region, 
and shall be charged with the protection 
abroad of the interests of the inhabitants. 
Nevertheless it is declared the existing na- 
tionality of the inhabitants remains un- 
affected, unless they choose to acquire a 
different nationality. 

The inhabitants may elect local assem- 
blies, every inhabitant over the age of 20 
years having the right to vote, without 
distinction of sex. Such inhabitants as 
may desire to leave the territory may do 
so without restriction as to property. 

The Governing Commission is supreme 
in interpreting the scheme under which it 
is instituted, the decisions to be taken by 
majority. 



It does not appear that German workmen 
have a right to belong to labor unions. 



What, it may be asked, is the political 
status of German nationals under the Gov- 
erning- Commission? Their nationality is 
said to be unaffected, yet nationality implies 
allegiance and allegiance involves the right 
and duty of protection. (Hershey, Essentials 
of Pub. Int. Law, p. 236.) The protection 
of German nationals is given over to the 
Governing Commission. Germany may not 
exert herself anywhere in their behalf. No 
hindrance is placed in their way against de- 
parting from the country or acquiring a 
new nationality; in fact, these clauses, includ- 
ing ample safeguards with respect to their 
private property, are of customary liberality. 



The inhabitants may elect local assemblies, 
but it is nowhere set out what the degree of 
influence such assemblies will have in the 
ordering of the domestic concerns. 



Article 47. The ultimate fate of the Saar 
Basin is here dealt with by reference to 



It is not quite plain why the "repurchase" 
of the Saar Basin by Germany should have 



— 21 — 



Chapter III of an Annex. In this chapter 
it is set out that at the termination of 
a period of fifteen years the population of 
the Saar Basin may have a plebiscite, the 
vote to be taken by communes or districts 
on the three following propositions: 

(a) Maintenance of the regime of the 
Governing Commission; (b) Union with 
France; (c) Union with Germany. 

All persons without distinction of sex, 
more than 20 years of age, resident in the 
territory at the date of the signature of 
the present treaty, v/ill have the right to 
vote. Other conditions may be made by 
the League of Nations. The League shall 
decide on the ultimate sovereignty, tak- 
ing into account the wishes of the inhabi- 
tants thus expressed. If the League de- 
cides in favor of Germany in whole or in 
part, the rights of France shall be re-pur- 
chased in gold, the price to be fixed by 
a commission of three, one of whom shall 
be nominated by France, the second by 
Germany, and the third by the League of 
Nations, who shall be neither a Frenchman 
nor a German. The League of Nations 
will take all decisions by majority. 



been made contingent upon a plebiscite. 
The population is overwhelmingly German, 
and since the qualified voters are those only 
over 20 years of age who were "resident in 
the territory at the date of the signature of 
the present treaty," that is, June 23, 1319, 
no amount of colonization by France can 
overcome that fact. 

The question arises, however, may those 
who have meantime removed from the Saar 
Basin back to Germany, enjoy the privileges 
of taking part in the plebiscite? Thsy would 
seem to be qualified if more than 20 years 
of age, since the provision designates "all 
persons," etc., yet it is not clear. 

The League shall decide, "taking into ac- 
count the wishes of the inhabitants as ex- 
pressed by the voting," with respect to the 
final disposition of the territory. There is 
no obligation to respect the results of the 
plebiscites; it is merely to be taken into ac- 
count along with other things. 

Nothing is said of the rights of German 
labor. France, as the one big employer in 
the territory, dominating practically every 
business and enterprise, is free wholly to sub- 
stitute French for German labor, through 
which the entire German population might 
be compelled to emigrate. In such a con- 
tingency it might then become important to 
settle whether absentees, who were resident 
in the Saar Basin in 1919, had the right to 
take part in the plebiscite. 



Article 48. Thi3 deals with the fixing 
boundaries of the Saar Basin. 



Article 49. Germanv renounces in favor of 
the League of Nations, in the capacity of 
trustee, the government of the territory 
defined above. 



A unique question of sovereignty arises 
from this Article. It is stated that Germany 
renounces in favor of the League of Nations 
as trustee only the government of the Saar 
Basin, and it is contemplated that German 
sovereignty subsists, since provision is made 
for "renunciation of sovereignty or cession" 
by Germany ultimately, in the event the 
League of Nations decides to award the whole 
or a part of the territory to France. 

Yet the political or governmental author- 
ity over a territory is the very essence of 
sovereignty, and by the provisions cf Chap- 
ters II and III this authority, internal as well 
as external, is vested in the Governing Com- 
mission. It is even charged with the pro- 
tection abroad of German nationals, inhabi- 
tants of the territories. It may thus be con- 
tended that Germany has parted with sover- 
eignty over the Saar Basin. If such a con- 
dition as the suspension of sovereignty i3 a 
legal possibility it may be that such occurs 
in the Saar Basin. (1 Moore, pp. 252-254.) 

In whatever terms the treaty seeks to de- 
scribe the transaction, however, it appears to 
be a simple case of disguised cession, on all 
fours with the so-called leased territory of 
the European powers and Japan in China, 
the restoration of such territories depending 
upon certain and uncertain contingencies. 
The Saar Basin case differs, of course, in the 



— 22 



SECTION V.— ALSACE-LORRAINE. 



fact that a third state, and not the cessionary 
is given exclusive rights of exploitation. (1 
Westlake, 133-139; Hershey, pp. 184-185.) 



The High Contracting Parties recogniz- 
ing the moral obligation to redress the 
wrong done by Germany in 1871, both to 
the rights of France and to the wishes of 
the population of Alsace-Lorraine, which 
were separated from their country in spite 
of the solemn protest of their representa- 
tives at the Assembly of Bordeaux, agree 
upon the following Articles: 

Article 51. The territories of Alsace and 
Lorraine are retroceded to France. 



As set out in the preamble the taking of 
Alsace-Lorraine by Germany in 1871, con- 
stituted a moral, not a legal wrong; that i3 
to say, title to the territory of another state 
founded in conquest is quite as legal and un- 
impeachable as if founded upon voluntary 
cession. It is a principle that violates our 
modern sense of justice, but it is nevertheless 
a settled one. 

It is to the credit of the High Contracting 
Parties that they recognized the moral obli- 
gation to redress this wrong, both to the 
rights of France as sovereign over the terri- 
tory, and to the wishes of the people. If 
this measure were applied universally the 
moral principle would thereby attain the po- 
sition of a legal one, since the basis of all 
law is universal acquiescence or assent. The 
High Contracting Parties have not only failed 
to seize the opportunity to legalize the prin- 
ciple against conquest and the rights of 
peoples to choose their own way of obedience 
by the universal application of these princi- 
ples, but they have destroyed and nullified 
the force of this instance of its application in 
settlements which repudiate these principles 
(see Part IV, Sec. 8, Articles 156-158); nor 
is any intimation given in the treaty that ex- 
isting instances of the subjection of peoples 
to alien governments against the will of such 
peoples constitutes a moral wrong. (See Sec. 
VI, Article 147.) 



Article 53. The political status of the in- 
habitants of Alsace-Lorraine is fixed in this 
Article by reference to an Annex which 
makes the following decisions: 

As from November II, 1 9 I 8, the follow- 
ing persons are ipso facto reinstated in 
French nationality: 

( 1 ) Persons who lost French nationality 
under the treaty of 1871 and acquired 
German nationality. 

(2) The legitimate descendants of those 
referred to above, except those whose de- 
scendants in the paternal line include a 
German who emigrated into Alsace-Lor- 
raine after July 15, 1870. 

(3) All persons born in Alsace-Lorraine 
of unknown parents or whose nationality 
is unknown. 



It will be observed that the treaty here 
attempts to determine the French nationality 
of the inhabitants without in any way con- 
sulting their wishes. It institutes three broad 
classes of persons whose nationality is 
changed arbitrarily. Those in the classes 
have nothing to say in the matter. 

The first class "reinstated" in French na- 
tionality includes all those who, upon the ces- 
sion of Alsace-Lorraine to Germany in 1871, 
declined to avail themselves of the right to 
opt for French nationality under Article II 
of the Treaty of Frankfort, but chose to re- 
main and acquire German nationality. 

It is conceivable that many of this class 
are satisfied with their acquired German na- 
tionality and are thus involuntarily trans- 
ferred to a new allegiance. 

And so in the second class, the descend- 
ants of the first class, it is probable that many 
will not willingly renounce their German 
allegiance. 

These persons are denied the right to opt 
for German nationality. 



The Annex also sets out the following 
classes as eligible to opt for French nation- 
ality: 



— 23 



( 1 ) All persons whose ascendants in- 
clude a Frenchman or a French woman 
who failed to opt for French nationality in 
1871. 

(2) All foreigners, not German nation- 
als, who became citizens of Alsace-Lor- 
raine prior to August 3, 1914. 

(3) All Germans domiciled in Alsace- 
Lorraine since July 15, 1870, or who had 
an ascendant so domiciled. 

(4) All Germans, domiciled or born in 
Alsace-Lorraine, who served in the Allied 
or Associated armies. 

(5) All persons born in Alsace-Lor- 
raine before May 10, 1870, of foreign par- 
ents and the descendants of such persons. 

(6) The husband or wife of any per- 
son whose French nationality may have 
been restored in the three classes referred 
to above, or who may have claimed and 
obtained French nationality in accordance 
with the preceding provisions. 



The rule that the nationality of the wife 
and children follow that of the husband and 
father is apparently ignored. The anomalous 
situation is thus made possible that a French 
national, residing in French territory, may 
have a wife who is an alien to him and to 
her own children. 



Subject to the above exceptions no Ger- 
mans born or domiciled in Alsace-Lorraine 
shall acquire French nationality, even 
though they are citizens of Alsace-Lor- 
raine, except by the normal process of nat- 
uralization, on condition of having been 
domiciled from a date previous to August 
3, 1914, and of submitting proof of three 
years' unbroken residence. 

France will be solely responsible for 
their diplomatic and consular protection 
from the date of application for natural- 
ization. 



The treaty, while arbitrarily restricting the 
right of option to limited classes and to a 
particular nationality (French) does not 
attempt to set aside the principle of naturali- 
zation. 



The practice of enlightened states, which 
may be said to conform to the law, in respect 
of protection abroad of declarant aliens, is 
that such protection is asserted to the full 
extent in countries other than those of origin. 
As against their native countries no such 
rights are claimed in view of the continuing 
allegiance of such declarants up to the mo- 
ment of complete acquirement of a new na- 
tionality. The rule rests upon a sound and 
logical foundation. (3 Moore, pp. 893, 895.) 

However France proposes to override it as 
against Germany, in behalf of German na- 
tionals who have declared their intention to 
become French citizens. It is safe to say that 
the posiiion can only be maintained by a 
stronger as against a weaker state. 

Considering the nationality provisions gen- 
erally with respect lo Alsace-Lorraine, it will 
be seen that a plebiscite has not been consid- 
ered, although Germans may predominate in 
ihe territories; nor is option freely granted. 
Large classes of persons are made French 
citizens by the fiat of the treaty and other 
restricted classes are declared eligible to 
claim French citizenship... None is declared 
capable of choosing any other nationality. 
Those in whom German nationality continues 
are marked out by the treaty with equal 
definiteness. 

The utter absence of observance of the 
doctrines of plebiscite and option, and or 
uniformity in dealing with like situation may 
be seen by comparison with Articles 36-37, 



24 — 



whereby German nationals resident in the 
territories ceded to Belgium acquire Belgian 
nationality ipso facto, and lose their German 
nationality; however, within two years Ger- 
man nationals there may opt for German na- 
tionality. 



rticle 55. This deals with the public debt 
of Alsace-Lorraine by reference to Article 
255, Part IX of the treaty, which sets out 
that since Germany refused to assume any 
of the public debt of Alsace-Lorraine in 
1871 France shall receive the territories 
free and quit of all public debts, nor shall 
any credit be given for same on the repa- 
ration account. 



In principle, therefore, there is no differ- 
ence betwen the conquest and the recon- 
quest, so far as the conduct of the victors is 
concerned. Each takes all it can get over 
and above the reparation account. 



rticle 56. In conformity with the provi- 
sions of Article 25 6, Part IX, France shall 
enter into possession of all property and 
estate in the territories belonging to the 
German empire, the German states, as well 
as the Crown property and the private 
property of the former German emperor 
and other German sovereigns, without any 
payment or credit on account of same. 

rticle 58. Provision is made for "repay- 
ment in marks of the exceptional war ex- 
penditure advanced during the course of 
the war by Alsace-Lorraine, or by public 
bodies in Alsace-Lorraine on account of 
the empire in accordance with German 
law, such as payment to the families of 
persons mobilized, requisitions, billeting 
of troops and assistance to persons who 
have been evacuated." 



See Comment, Article 39. 



Thus France not only does not assume any 
portion of the German debt in connection 
with Alsace-Lorraine, but there is to be re- 
paid the sums Alsace-Lorraine, in common 
with all parts of the empire, was called on to 
expend as indicated. 



rticle 59. France will collect on its own 
account Imperial taxes of every kind levi- 
able and not collected at the time of the 
armistice, November II, 1918. 

rticle 60. Germany shall restore without 
delay to Alsace-Lorrainers all property, 
rights and interests belonging to them on 
November 11, 1918, situated in German 
territory. 

rticle 62. Germany undertakes to bear 
the expense of all military and civil pen- 
sions earned in Alsace-Lorraine on Novem- 
ber II, 1918, and to pay annually the 
sums to which persons resident in Alsace- 
Lorraine would have been entitled under 
German rule. 



rticle 63. Germany's liability for injury 
and damage is declared by reference to 
Part VIII (Reparation), as follows: 

"The Allied and Associated Govern- 
ments affirm and Germany accepts the 
responsibility of Germany and her allies for 
causing all the loss and damage to which 
the Allied and Associated Governments 
and their nationals have been subjected as 



Damages have been calculated on the 
premise that since Germany was the aggres- 
sor, she precipitated and carried on an un- 
lawful war, and should therefore be responsi- 
ble for all damage of whatsoever kind, 
whether resulting from the operations of her- 



25 — 



a consequence of the war imposed upon 
them by the aggression of Germany and 
her allies." 

The Allied and Associated Governments 
require and Germany undertakes to make 
compensation for all damage done to the 
civilian population of the Allied and Asso- 
ciated Governments and to their property 
during the period of the belligerency of 
each by such aggression by land, by sea 
and from the air, and in general, all dam- 
age as defined in Annex I, hereto. 



self and her allies, or from the measures of 
the Allied and Associated Governments. 
While it is within the power of a successful 
belligerent to impose any terms he wishes the 
lav/ of nations nowhere makes any distinc- 
tion between a just and an unjust war, nor 
between a lawful and an unlawful war. In 
view of the law, since each sovereign nation 
may alone determine the demands of its wel- 
fare and interest, it is the right of each to 
determine when its exigencies require a 
resort to war. Since 1899 (The Hague, Con- 
vention No. 4) a. distinction has been made 
between a war lawfully declared and one not 
thus declared. 

From a moral standpoint a war may be 
unjust and unrighteous, as that precipitated 
by Germany unquestionably was, but it can 
not be unlawful, since it is the supreme and 
final appeal of all states in the protection of 
their well-being. 

It has been argued, and not without force, 
that by reason of the obligations assumed by 
Germany toward Belgium under the treaty of 
Neutralization of April 19, 1839, it became 
legally impossible for Germany to carry on 
war against Belgium; and that Germany may 
not therefore claim the benefits of the laws 
of war ordinarily obtaining; that is to say, in 
the case of Belgium, Germany is not entitled 
to deny responsibility for such destruction, 
fines, contributions, requisitions and other 
warlike acts as are within the compass cf the 
lawful rights of belligerents. 

Taking into consideration this exception 
there is no principle of public international 
law that enlarges the legal responsibility of 
one of the belligerents because it was the 
aggressor. In fact it is generally impossible 
to determine with accuracy whether or not 
a particular state was or was not the aggres- 
sor. It is clear in the Franco-Prussian war 
of 1870-71, in the Anglo-Boer war of 1900 
and in the Turco-Italian war of 1912, but no 
one has yet determined whether Russia or 
Japan was the aggressor in 1904. (See The 
Peace Problem (1916) John Bassett Moore.) 

In order to avoid as far as possible the 
evils of society it is agreed, says Vattel, to 
regard every lawfully declared war as just on 
both sides. (Halleck, International La^v, 4th 
ed., Vol. 1, p. 571.) 

This statement of the law ha3 undergone 
no change up to the present. Out of this 
view has necessarily sprung the lav/ of neu- 
trality. 

War brings into operation a great variety 
of laws defining rights and duties of bellig- 
erents and neutrals, and among its rights 
accruing to a belligerent is that to inflict any 
damage upon his enemy, %vhich has a mili- 
tary object. There are certain specific limi- 
tations upon a belligerent's means of injur- 
ing his enemy, both at sea and on land, de- 
signed to prohibit needless and wanton injury 
and damage. However, it may be asserted 
as a general principle of the laws of war that 
all damage and injury inflicted in pursuit of a 



26 — 



The Annex then declares: 

"Compensation may be claimed from 
Germany under Article 232 above in 
respect of the total damage under the fol- 
lowing categories: 



military object are lawful. (Lawrence, 4th 
ed., Sec. 206, p. 549; Spaight, 112). 



( 1 ) Damage done to injured persons 
and to surviving dependents by personal 
injury to or death of civilians caused by 
acts of war, including bombardments or 
other attacks on land, on sea or ifrom the 
air, and all direct consequences thereof, 
and of all operations of war by the two 
groups of belligerents wherever arising. 



Civilians are under the protection of the 
laws of war, but their immunity from direct 
and intentional injury is dependent upon 
peaceable and non-hostile conduct. It is one 
of the marked moral achievements of the 
last century that the great divisions of popu- 
lations of belligerent states into combatants 
and non-combatants, with definite law regu- 
lating their rights and duties, have been 
made. 

Whence, civilians, taking no part in hos- 
tilities may not lawfully be made the object 
of direct injury. Nevertheless their injury or 
killing as a mere incident to the carrying out 
of a lawful military operation involves no 
responsibility. For example, enemy munition 
plants are lawful objects of attack. If in such 
attacks death should ensue to all of the em- 
ployees, men, women and children, no lia- 
bility whatever would rest upon the govern- 
ment of the attacking force. So, too, the in- 
cidental deaths of civilians in cases of bom- 
bardment of defended towns, villages, build- 
ings and places involve no liability. (Holland, 
p. 30; Spaight, pp. 140-180). 

It has never been settled what constitutes 
a "defended" place; but it has been con- 
tended by eminent authority (Westlake, Col- 
lected Papers) that the presence of a single 
soldier or company of soldiers might be suf- 
ficient to constitute a defended place. If this 
be so, it may be said that in the present great 
war hardly a city, town or village in any of 
the belligerent states was undefended, so 
great were the proportions of the populations 
taken into the armies. 

As to the immunity of non-combatants, it 
may be asked, to what degree, if any, was 
this immunity compromised in the present 
Great War in view of the universal mobili- 
zation of man, woman and child-power be- 
hind the armies of the respective belliger- 
ents? 



The following principles of lav/ are settled: 

(a) That act3 of war, including bombard- 
ments and other attacks on land and from the 
air, involve no legal liability whatever so long 
as they have a military object and are not 
directed against an undefended place. 

(b) That attacks at sea against public 
armed enemy vessels involve no liability; that 
attacks upon unarmed merchantmen, not 
guilty of flight or resistance, are illegal and 
do involve liability. But even where flight or 
resistance has been overcome there is a legal 
obligation to provide for the safety of crew 
and passengers. 



27 — 



The placing upon a vanquished belligerent 
of responsibility for all damage and injury 
resulting from the operations of the victor is 
a mere exercise of power in the nature of 
indemnity; it can net be construed as repara- 
tion. 



(2) Damage caused by Germany and 
her allies to civilian victims of acts of 
cruelty, violence and maltreatment (in- 
cluding injuries to life or health as a con- 
sequence of imprisonment, deportation, in- 
ternment or evacuation, or exposure at sea 
or of being forced to labor) wherever 
arising, and to the surviving dependents of 
such victims. 



(2) Damage by Germany and her allies 
caused to civilian victims by acts of cruelty, 
violence or maltreatment, may properly give 
rise to legal responsibility, v/here such acts 
of cruelty, violence or maltreatment were not 

permissible and many of such are — under 

the laws of war. For example, the right of 
reprisal upon a rebellious population in a 
militarily occupied district, may lawfully in- 
volve extreme violence, even to the shooting 
of civilians and the destruction of whole 
towns. (Spaight, 465-470.) 

It is the right of a belligerent state to im- 
prison, intern and deport enemy civilians, 
particularly male persons of military age, and 
to use reasonable disciplinary measures 
against them for cause. 

Legal responsibility properly lies in the 
matter of exposure at sea in view of the set- 
tled principle requiring provision for the safe- 
ty of crew and passengers cf a captured ves- 
sel. 



(3) Damage caused by Germany or her 
allies in their own territory or in occupied 
or invaded territory to civilian victims, of 
all acts injurious to health or capacity to 
work or to honor, as well as to surviving 
dependents of such victims. 



A3 to acts injurious to health or capacity 
to work, such conditions might follow the 
exercise of lawful violence, as reprisals 
against a disobedient or resisting population 
in a militarily occupied territory. Family 
honor is clearly under the inviolable protec- 
tion of the laws of war. (The Hague, 1907, 
Convention 4, Art. 46). 



(4) Damage caused by any kind of mal- 
treatment of prisoners of war. 



(4) There is no legal liability in cases of 
damage resulting from reasonable disciplin- 
ary measures in which the victim was culpa- 
ble. 



(5) As damage caused to the peoples of 
the Allied and Associated Powers all pen- 
sions and compensation in nature of pen- 
sions to naval and military victims of the 
war, whether mutilated, wounded, sick or 
invalided, and to the dependents of such 
victims. 



(5) This is a mere exercise of power by 
the victor over the vanquished in the nature 
of indemnity. 



(6) The cost of assistance by the gov- 
ernments of the Allied and Associated 
Powers to prisoners of war and their fam- 
ilies and dependents. 



(7) Allowance by the governments of 
the Allied and Associated Powers to the 
families and dependents of mobilized per- 
sons and persons serving with the armed 
forces. 



It is customary among belligerents to com- 
pute the respective costs of maintenance of 
prisoners of war, including salaries allowed 
officers, and to settle any balance at the 
peace. 

The provision is in the nature of indem- 
nity where it exceeds this custom. 

This is a mere exercise of power in the 
nature of indemnity. 



— 28 — 



(8) Damage caused to civilians by be- 
ing forced by Germany or her allies to 
labor without just compensation. 



(8) The services of civilians in militarily 
occupied territory may be requisitioned, nor 
does the law require more than that a receipt 
for such services shall be given. The receipt 
does not imply liability on the part of the 
giver to redeem it. (2 Westlake, 270; Bord- 
well, 319; Spaight, 402-405.) 



(9) Damage in respect of all property 
wherever situated belonging to any of the 
Allied or Associated Powers or their na- 
tionals, with the exception of naval and 
military works or materials, which have 
been carried off, seized, injured or de- 
stroyed by acts of Germany or her allies 
en land, on sea or from the air, or damage 
directly in consequence of hostilities or of 
any operations. 



This provision ignores the whole body of 
settled law with respect to allowable dam- 
age and destruction. Such legal destruction 
includes: 

(a) AH destruction of naval and military 
works, including shops, railroads and equip- 
ment, munition plants, barracks and all build- 
ings used by armed forces (other than hos- 
pitals). 

(b) Destruction of private property inci- 
dental to bombardment. 

(c) Destruction of property of military 
value to prevent it falling into the hands of 
the enemy. 

(d) Destruction of property to facilitate 
an attack or to impede pursuit. 

To summarize, it may be said that all de- 
struction which serves a military end, and is 
not purely wanton, is lawful. (Spaight, 1 1 1 et 
seq., 418.) 

As to property carried off or seized, the 
law makes a distinction between public mov- 
ables, that is, government-owned property, 
and private property. The former is con- 
fiscable under the laws of war; the latter i3 
not. (Spaight, 411, 412; 2 Westlake, 103- 
104; Bonnls Nos. 1191-1193). 

Yet even private property may be seized 
and converted by a belligerent if it is 
noxious, that is to say, if it is of a character 
lending itself peculiarly to warlike use; so, 
too, private property may be taken under the 
right of requisition. (Spaight, 199-200). 



(10) Damage in the form of levies, 
fines and other similar exactions imposed 
by Germany or her allies upon the civilian 
population. 



(10) Levies (contributions and requisi- 
tions) and fines are lawful measures of war. 
Levies in service, in supplies and in cash are 
lawful if undertaken for the needs of the 
army, or in lieu of or in addition to taxes, 
for the support of the administration of occu- 
pied territory, provided that they are in pro- 
portion to the resources of the territory; and 
provided further that they are not levied for 
mere purposes of plunder. 

Fines are a lav/ful measure against the dis- 
obedience of a population in a militarily occu- 
pied territory, if responsibility for disobedi- 
ence be collective. It is the mildest manifes- 
tation of the right of reprisal. (Spaight, 383, 
408-410.) 



Article 64. Regulations concerning the con- 
trol of the Rhine and the Moselle are laid 
down by reference to Part XII of the 
treaty. Part XII, Chapter IV, provides 
among other things that Germany shall 
cede to France tugs and vessels registered 
in German Rhine ports, including fittings 
and gear, installations, berthing and an- 



This is purely an economic advantage in 
the nature of indemnity. It is repugnant to 
the spirit of the law at least to the extent 
that private property exists in such tugs, ves- 
sels, etc. (See Comment, infra, Article 74). 



— 29 — 



chorage accommodations, docks, ware- 
houses, plants, etc., whether publicly or 
privately owned, in an amount to be de- 
cided by an arbitrator to be appointed by 
the United States, "due regard being had to 
the needs of the parties concerned." The 
value of such property shall be set off 
against the total sums due from Germany. 



Article 65. This Article gives to France 
certain economic advantages in the ports 
of Strasburg and Kehl under the Central 
Rhine Commission, to be presided over by 
a Frenchman. 



This is in the nature of indemnity. 



Articles 66-67. Railway and other bridges 
across the Rhine within the limits of Al- 
sace-Lorraine throughout their length be- 
come French property, as do all Imperial 
railways and tram concessions, entailing no 
payment on the part of France. 

Articles 68-71. Additional economic advan- 
tages are given to France, including ex- 
emption from customs duties on natural or 
manufactured products of Alsace-Lorraine 
entering Germany and the import into Al- 
sace-Lorraine of certain goods from Ger- 
many free from internal duties in Ger- 
many; supply of electric current to Alsace- 
Lorraine by Germany; prohibition of Ger- 
man participation in enterprises in Alsace- 
Lorraine; renunciation of German rights 
regarding trade in potash salts. 

Article 74. The French government reserves 
the right to retain and liquidate all the 
property, rights and interests which Ger- 
man nationals or societies controlled by 
Germany possessed in Alsace-Lorraine on 
November 11, 1918. Germany will com- 
pensate her nationals thus dispossessed. 
The product of these liquidations shall be 
applied in accordance with the stipulations 
of Sections III and IV of Part X of the 
treaty. 

Section III (Article 296) provides for 
the settlement through clearing offices to 
be established by each of the High Con- 
tracting Parties of the following classes of 
debts: 

(a) Debts due before the war from a 
national of an Allied or Associated power, 
residing within its territory, to a national 
of Germany or her allies, residing in its 
territory. 

(b) Debts payable during the war to na- 
tionals of Allied or Associated powers, 
payment of which was suspended by the 
war. 

(c) Any interest accrued before or dur- 
ing the war on securities issued by Ger- 
many or her allies. 

(d) Any capital sums which have be- 
come payable in respect of securities issued 
by Germany or her allies. 

The High Contracting Parties will pro- 



This is in the nature of indemnity. No 
obligation with respect to uniformity of tolls 
appears to rest upon France in connection 
with the use of these international bridges. 



These are in the nature of indemnity. 



This Article and its references (Sections 
III and IV of Part X) commit the Allied and 
Associated governments to the confiscation of 
all private property of German nationals, 
whether situated in their own territories or 
in the territories taken from Germany, and 
restitution of or compensation for all private 
property of nationals of Allied or Associated 
Powers in German hands. It i3 true that it 
is declared that Germany will compensate her 
nationals who are thus dispossessed, but in 
view of the extent of the various indemnities 
imposed it is doubtful that this declaration 
can ever be fulfilled. It is therefore, at best, 
disguised confiscation. 

From antiquity to the dawn of the 19th 
century it was the custom of a belligerent to 
seize and convert the private property of na- 
tionals of his enemy, while the private enemy 
individual might be dealt with after the de- 
sires of the captor. In the last century, how- 
ever, a settled distinction in the lav/ has dif- 
ferentiated the private unarmed enemy per- 
son and his property from the public armed 
enemy person and public property, on the 
principle that war is a relation between states 
and not between individuals. The former, 
classified as non-combatant, is entitled to pro- 
tection in his person and property; the latter, 
classified as combatant, may be made the ob- 
ject of direct hostile action. As to public 
property, all movables of the enemy govern- 



30 



hibit all settlements otherwise than through 
the clearing offices; they will be respec- 
tively responsible for the payment of such 
debts as were due from their nationals. 
(Debts due by inhabitants of invaded terri- 
tory will not be thus guaranteed, nor does 
the guarantee extend to a debtor who was 
insolvent before the war or whose property 
was liquidated under emergency legisla- 
tion). 

Private settlements of debts between a 
national of an Allied or Associated Power 
and a national of Germany or her allies 
is assimilated even after peace to trading 
with the enemy and will involve "the same 
penalties as are at present provided" in 
such legislation. All legal processes for 
the private recovery of such debts will be 
prohibited. 

Creditors shall give notice to the Clear- 
ing Office within six months of debts due 
to them. 

Any person having claimed payment of 
an enemy debt which is not admitted in 
whole or in part shall pay to the Clearing 
Office, by way of fine, interest at 5 per cent 
on the part not admitted, during the pen- 
dency of such claim. 

A person "having unduly refused to ad- 
mit the whole or part of a debt claimed 
from him" shall pay, by way of fine, 5 per 
cent of the amount "with regard to which 
his refusal shall be disallowed." 

Clearing offices shall be responsible for 
the collection of such fines, which "will 
be credited to the other Clearing Office, 
which shall retain them as a contribution 
toward the costs" of the office. 



ment are liable to confiscation. Private 
property is under the protection of written 
law, declaring it to be inviolable. (The 
Hague, 1907, Convention IV, Article 46). 
This must be understood to be qualified, 
however, by certain definite exceptions. (See 
Comment on Article 63, sub-section 9.) 



This would require an Act of Congress to 
carry it into execution. 

As to the universally recognized rule of 
law forbidding the confiscation of private 
enemy debts, see, infra, Comment opposite 
Article 302. 



A Mixed Arbitral Tribunal is set up as 
a court of appeal as between disagreeing 
Clearing Offices. 



Section IV. (Article 297) sets out the fol- 
lowing with respect to the private prop- 
erty, rights and interests of German na- 
tionals situated in Allied and Associated 
countries: 

(a) Germany shall immediately discon- 
tinue all war measures (including liquida- 
tion and transfer) taken against the prop- 
erty, rights and interests of nationals of 
Allied and Associated Powers, such nation- 
als to enjoy full rights in accordance with 
Article 298. 

(b) The Allied and Associated govern- 
ments reserve the right to retain and 
liquidate all property, rights and interests 
belonging to German nationals, or com- 
panies controlled by them within their 
territories, colonies, possessions and pro- 
tectorates, including the territories ceded. 

German nationals shall not be able to 
dispose of such property nor to subject it 
to any charges. 

German nationals who acquire ipso facto 
the nationality of an Allied or Associated 



It appears under this sub-section that the 
United States is empowered to seize, in addi- 
tion to the private property situated in the 
United States of German nationals resident in 
Germany already sequestered by the Alien 
Property Custodian, the private property of 
all German nationals resident in the United 
States. An Act of Congress would, however, 
be necessary as a condition precedent to the 
exercise of that power. 

"What we have said of the detention of the 
enemy's person also holds good with respect 



31 — 



Power shall not be liable to such depriva- 
tion of their private property. 



to the right to seize and confiscate all enemy 
property found within the territory of the 
other belligerent at the commencement of 
hostilities. In former times this right was 
exercised with great rigor, but it has now 
become an established, though not inflexible 
rule of international law, that such property 
is not liable to confiscation as prize of war. 
This rule, says Chief Justice Marshall (Brown 
vs. United States, 8 Cranch, R. 123) "like 
other precepts of morality, of humanity and 
even of wisdom, is addressed to the judgment 
of the sovereign — it is a guide which he fol- 
lows or abandons at his will; and, although 
it can not be disregarded by him without 
obloquy, vet it may be disregarded." (Hal- 
leck, 4th ed., Vol. 1, p. 587). 

The power to confiscate enemy property 
cannot be exercised by the United States, 
however, except by the direct authority of 
Congress... (Brown vs. United States, 8 
Cranch, R. 123). The extent of authority 
existing in the absence of such legislation is 
to sequester using reasonable care to conserve 
such property for its owners, under an obli- 
gation to restore it or its equivalent at the 
peace as we have done through the lav/ creat- 
ing the Alien Property Custodian. Even this 
right is generally qualified by treaty. (See 
Treaty with Prussia, 132S, 2 Malloy, p. 
14S6). 

The far-reaching effect of this policy i3 
likely to hamper American investments all 
over the world. 



(e) Nationals of Allied and Associated 
Powers shall be entitled to compensation in 
respect of damage or injury to their prop- 
erty, rights or interests, including any 
company in which they are interested, due 
to war measures of liquidation or transfer; 
and they may be compensated out of pri- 
vate property of German nationals in the 
hands of Allied and Associated govern- 
ments. Germany will receive credit on the 
reparation account as to any balances, 
which shall be paid to the Reparation Com- 
mission. 

(i) Germany undertakes to compensate 
her nationals thus deprived of their pri- 
vate property by the Allied and Associated 
Powers. 

(j) The amount of all capital taxes lev- 
ied on property of Allied and Associated 
nationals by Germany after November I 1, 
1918, shall be refunded. 



See Comment opposite Article 74. 



By Sections a and b (Article 298) Ger- 
many undertakes to restore to nationals of 
Allied and Associated Powers their prop- 
erty, rights and interests as they existed 
prior to the war, and not to subject such 
property, rights and interests to any mea- 
sures not applied equally to property of 
German nationals. 



By Annex, paragraph 1, under Section 



IV, Germany confirms all act3 of Allied 
and Associated Powers with respect to the 
property of German nationals. 

By paragraph 2, Germany agrees that no 
claim or action shall be brought against 
any Allied or Associated Power or person 
on account of acts or omissions with re- 
spect to German property. 



By paragraph 1 0, Germany will, within 
six months, deliver to each Allied or Asso- 
ciated Power, all securities, certificates, 
deeds or other documents of title held by 
its nationals and relating to property, 
rights or interests situated in the territory 
of that Allied or Associated Power, includ- 
ing any shares, stock, debentures, deben- 
ture stock, or other obligation of any com- 
pany incorporated in accordance with the 
lav/s of that power. She will further fur- 
nish any information desired concerning 
property of her nationals so situated. 



On the whole, it may be said that in the 
pursuit of large indemnities the Allied and 
Associated governments have in these Arti- 
cles repudiated principles, which, in the lan- 
guage of Spaight, the eminent English pub- 
licist, constitute the Magna Charta of war 
law. (War Rights on Land, p. 374). And 
since the remaining great powers have con- 
certed in its repudiation it may be asserted 
that they have brought to naught the en- 
lightened and laborious work of a century in 
this regard. 



By the concluding paragraph of the 
Annex the foregoing provisions are de- 
clared to apply to industrial, literary and 
artistic property. 



SECTION VI.— AUSTRIA. 



This provision appears, with respect to 
some of the signatories, to make a "scrap 
of paper" of the "Revised Berne Convention" 
for the protection of copyrights, signed No- 
vember 13, 1908, and other similar treaties. 
(Sea Comment Article 236). 



Article 80. Germany acknowledges and will 
respect strictly the independence of Aus- 
tria within frontiers to be fixed and agrees 
that the independence is inalienable. 



Provision in the new German Constitu- 
tion for a seat for an Austrian delegate in 
the German Reichsrat was held by the Prin- 
cipal Allied and Associated Powers to be 
violative of this obligation "to respect" Aus- 
trian independence. (Compare with the 
mutual obligation "to respect" the territorial 
integrity and existing political independence, 
under Article 10.) The racial characteris- 
tics of what is left of Austria are predomi- 
nantly German, the subject peoples of the old 
dual monarchy having been accorded the 
right of self-determination. Yet the achieve- 
ment of German unity is forever forbidden. 
This ignores the inexorable lessons of his- 
tory and makes for Irredentism. 



SECTION VII.— CZECHO-SLOVAK STATE. 

Articles 81-83. Germany recognizes the in- 
dependence of the Czecho-Slovak state and 
renounces all rights and title over a portion 
of Silesian territory therein described. 



Article 84. German nationals habitually resi- 
dent in territories recognized as forming 
part of the Czecho-Slovak state will obtain 
Czecho-Slovak nationality ipso facto and 
lose their German nationality. 



See Comment opposite Article 36. 



Article 85. Within a period of two years 
German nationals over 1 8 years of age 



See Comment opposite Article 37. 



— 33 



habitually resident in such territories may 
opt for German nationality; "within the 
same period Czecho-Slovaks who are Ger- 
man nationals and are in a foreign coun- 
try will be entitled, in the absence of any 
provision to the contrary in the foreign 
law, and if they have not acquired the 
foreign nationality, to obtain Czecho-Slo- 
vak nationality by complying with the 
requirements laid down by the Czecho 
Slovak state." 



Article 86. The Czecho-Slovak state agrees 
to embody in a treaty with the Allied and 
Associated powers provisions for the pro- 
tection of inhabitants differing from the 
majority in race, language or religion. 



See Treaty of Berlin, 1878, Articles 5, 25, 
35 and 44, recognizing conditional inde- 
pendence of Bulgaria, Roumania, Servia and 
Montenegro. (Martens, N. R. G. 2nd Ser. 
Ill, p. 449). 

This implies the right, and perhaps the 
duty of intervention. 



SECTION VIII. — POLAND. 



Articles 87-88. Germany recognizes com- 
plete independence of Poland and cedes 
certain territory, provision being made for 
delimitation of frontiers, and for plebi- 
scites in portions of Upper Silesia. 



Poland was extinguished by a final parti- 
tion among Russia, Prussia and Austria in 
1795, confirmed by the Congress of Vienna 
in 1815. In the present treaty large parts 
of Austrian and Prussian Poland are to be 
returned to the reconstituted State. A set- 
tlement with respect to Russian Poland lies 
in the future. 

The provisions of this section are founded 
upon political rather than upon legal con- 
siderations, however, a primary object be- 
ing the erection of a strong buffer state be- 
tween Germany and Russia; for, in spite of 
the wrongful and unlawful acts of Russia, 
Prussia and Austria in the three partitions 
their titles had become good in law by pre- 
scription. (1 Oppenheim, pp. 309-310). 



By Annex 1 under Section VIII those 
qualified to vote shall be persons, with- 
out distinction of sex, who have completed 
their twentieth year and who were born 
in the plebiscite area or have been domi- 
ciled therein since a date to be determined 
by an International Commission in charge. 
On the conclusion of the voting the Com- 
mission will make a recommendation to 
the Allied and Associated Powers as to 
the frontier of Germany in Upper Silesia 
in which "regard will be paid to the 
wishes of the inhabitants as shown by the 
vote, and to the geographic and economic 
conditions of the locality." 



Article 9 1 . German nationals habitually 
resident in territories recognized as form- 
ing part of Poland will acquire Polish na- 
tionality ipso facto and will lose their Ger- 
man nationality with the exception of those 
or their descendants who became resident 
in the territories after January 1, 1908, 
who require special authorization from the 
Polish state to become Polish nationals. 
Within two years Germans thus becoming 



Here again involuntary naturalization is 
resorted to, v/ith, however, a subsequent 
right to opt. (See Comment opposite Arti- 
cles 36 and 37.) It will be observed in this 
Article that persons opting "may" transfer 
their residence within twelve months. 



— 34 — 



Poles, as well as Poles resident in Ger- 
many who are German nationals, over 1 8 
years of age, may opt for the other na- 
tionality respectively. 

Persons thus exercising the right to 
opt "may" within the succeeding twelve 
months transfer their place of residence 
to the state for which they have opted. 
Each will be entitled to retain his im- 
movable property in the territory of the 
other and freely to carry with him his 
movable property. 

Within the same period Poles in for- 
eign countries, who are German nationals, 
will be entitled, in the absence of restric- 
tions in the foreign law, to acquire Polish 
nationality by complying with the require- 
ments laid down by the Polish State. 



Article 92. Poland will assume a portion of 
the Prussian and German debt attributa- 
ble to the territory on the basis of the 
ratio between the average for the years of 
1911, 1912 and 1913, of such revenues of 
ceded territory and the average for the 
same years of revenues of the German 
empire, with the exception that there 
shall be excluded that portion arising from 
German and Prussian projects of coloni- 
zation. 



See Comment opposite Article 39. 



Article 93. Poland agrees to embody in a 
treaty with the principal Allied and Asso- 
ciated Powers such provisions as may be 
deemed necessary to the protection of in- 
habitants who differ from the majority in 
race, language or religion. 



See Comment opposite Article 86. 



SECTION IX.— EAST PRUSSIA. 



Articles 94-98. Provision is made herein 
for a plebiscite by the inhabitants to indi- 
cate their choice as between remaining a 
part of Germany or becoming incorpo- 
rated into Poland under the same proce- 
dure and conditions previously set out in 
Articles 87 and 88 and the Annex 
thereto. 



It does not appear that any right of option 
is given to the minority. 



SECTION X.— MEMEL. 



Article 99. Germany renounces in favor of 
the Principal Allied and Associated Pow- 
ers all rights and title over Memel and 
undertages to accept in advance any dispo- 
sition to be made of same. 



This renunciation of sovereignty is made 
in favor of the Principal Allied and Asso- 
ciated Powers, by which the United State* 
becomes possessed of an undivided one-fifth 
interest in the territory. The right to 
acquire territory is incident to and inferable 
from Art. 1, Sec. 8, U. S. Constitution, but 
the disposition of territory thus acquired by 
the United States is in the sole power of 
Congress. (Art. IV, Sec. 3, U. S. Const.). 
The power to dispose of such territory is a 
legislative one and can not be delegated. 



35 — 



Articles 100-102. Germany renounces in 
favor of the Principal Allied and Asso- 
ciated Powers territory within certain 
boundaries on the Baltic within which the 
"Free City of Danzig" is to be created, 
"under the protection of the League of 
Nations." 



Ibid. 



Article 103. A constitution for the Free 
City of Danzig will be drawn up by rep- 
resentatives of the Free City and a High 
Commission appointed by the League of 

Nations. 



Article 104. The Principal Allied and Asso- 
ciated Powers undertake to negotiate a 
treaty between Poland and the Free City 
of Danzig which will insure reciprocal 
economic privileges, ensure Poland control 
of the Vistula and of the whole system 
of railways within the Free City, with 
the exception of street railways, ensure 
Poland the right to develop waterways, 
docks, etc., and which will provide that 
Poland shall conduct the foreign relations 
of the Free City as well as undertake the 
diplomatic protection of its citizens 
abroad. 



Article 105. German nationals habitually 
resident in the territory of the Free City 
of Danzig "will ipso facto lose their Ger- 
man nationality" on the coming into force 
of the treaty "in order to become na- 
tionals of the Free" City of Danzig." 



Such a treaty as contemplated between 
Poland and the Free City of Danzig would 
involve the transfer of the sovereignty over 
the so-called Free City to Poland, in view 
of the proposal to give Poland control of 
foreign affairs of the Free City; for that 
control is the test of sovereignty. 

A3 cited supra, it involves for the United 
States a constitutional question, being alien- 
ation of territory, and would require an act 
of Congress in addition to ratification of the 
present treaty. 

It is interesting to study in connection 
with this project the erection of the Free 
City of Cracow, by the Congress of Vienna 
in 1815, under the protection of Russia, 
Prussia and Austria, and the annexation of 
that so-called Free City by Austria in 1843. 
(Nys. 1, pp. 333-385). 

It will be observed that German nationals 
thus losing German nationality do not at 
that instant acquire any other, as in the 
preceding instances cited; until they becoma 
nationals of the Free City they are without 
any nationality, or what the Germans term 
staatlos or heimatlos. 



Article 1 06. Within two years German na- 
tionals over 18 years of age may opt for 
German nationality, though those opting 
"must" transfer their residence to Ger- 
many within the ensuing twelve months. 

Section 107. All property situated within 
the Free City of Danzig belonging to the 
German empire or to any German state 
shall pass to the Principal Allied and 
Associated Powers for transfer to the Free 
City of Danzig or to the Polish State as 
they may consider equitable. 



See Comment opposite Article SI. 



As the United States would possess an 
undivided one-fifch interest, it would require 
an act of Congress to alienate that interest. 
(Vide supra, opposite Articles 99 and 104). 



Article 108. The proportion of public debt 
to be assumed by the Free City of Dan- 
zig is to be calculated on the ratio indi- 
cated for Poland in Article 92, without 
the exceotion therein indicated. 



Ratio is set out in Article 254 of the 
treaty. 



SECTION XII.— SCHLESWIG. 



Article 109. 



rovision is made in 



the< 



Denmark was despoiled of Schleswsg by 



SG 



Articles for a plebiscite within certain 
described territory by which the inhabi- 
tants may indicate their desire for incor- 
poration with Denmark, the right to vote 
being given to all persons, without dis- 
tinction of sex, who have completed their 
twentieth year and who were born in the 
zone in which the plebiscite is taken or 
have been domiciled there since a date 
before January 1, 1900, or had been ex- 
pelled by Germany. 



Prussia and Austria in 1864. Two years 
later Prussia became the sole possessor in 
war with Austria, which left Prussia supreme 
in the German political system. Schleswig 
is Denmark's Alsace-Lorraine and the treaty 
properly attempts to undo the wrong suf- 
fered by the Scandinavian state. 

It may be remarked, however, that Den- 
mark was not officially consulted in the ar- 
rangements made by the Allied and Associat- 
ed Powers. 



Article 1 1 0. Germany renounces definitely 
in favor of the Principal Allied and Asso- 
ciated Powers all rights of sovereignty 
over territories situated to the north of a 
frontier line fixed by the Allied and Asso- 
ciated Powers, who "will hand over the 
said territories to Denmark." 



See Comment opposite Articles 99, 104 
and 107. 



Article 112. "All the inhabitants of the 
territory which is returned to Denmark 
will acquire Danish nationality ipso facto 
and will lose their German nationality," 
with the exception that persons who had 
become habitually resident in this terri- 
tory after October 1 , 1918, can become 
Danish nationals only with permission of 
the Danish government. 



See Comment opposite Article 36. 



Article 113. Within two years any person 
over 1 8 years of age, born in the terri- 
tory, not habitually resident in this re- 
gion, may opt for Danish nationality, and 
any person over 1 8 years of age, habit- 
ually resident in the region, may opt for 
German nationality. Those opting must 
transfer their place of residence within 
the ensuing twelve months. They will be 
entitled to retain their immovable prop- 
erty and freely to carry their movable 
property with them. 



See Comment opposite Article 37. 



Article 1 I 4. The proportion of public debt 
to be assumed by Denmark with respect to 
territory restored will be calculated en 
the ratio indicated in the case of the Free 
City of Danzig. (See Article 108). 



By the treaty of October 30, 1864, by 
which Denmark renounced all rights over 
the three duchies of Lauenburg, Holstein 
and Schleswig in favor of the Emperor of 
Austria and the King of Prussia, these 
duchies assumed their portion of the Danish 
debt. 



SECTION XIII.— HELIGOLAND. 

Article I 15. All fortifications on the islands 
of Heligoland and Dune shall be destroyed 
and shall not be reconstructed. 



SECTION XIV.— RUSSIA AND RUSSIAN 
STATES. 



This constitutes a restriction on German 
territorial supremacy, technically described 
as a negative servitude. So many, both neg- 
ative and positive, and military and eco- 
nomic, have been imposed upon Germany by 
the present treaty that it is doubtful that 
Germany can be described as a fully sover- 
eign state, at least during their continuance. 



Article 116. Germany agrees to respect as 



Arrangements entered into by two or more 



97 



inalienable the independence of all terri- 
tories which were part of the former Rus- 
sian empire, and, by reference to Article 
292, accepts definitely the abrogation of 
the Brest-Litovsk treaties and all other 
agreements with the Maximalist govern- 
ment. 

The Allied and Associated governments 
reserve the rights of Russia to obtain res- 
titution and reparation as against Ger- 
many. 



states with respect to another can not, of 
course, bind that other state. These are po- 
litical and economic, rather than legal pro- 
visions. 



Article 1 1 7. Germany undertakes to recog- 
nize any treaties and agreements subse- 
quently to be entered into by the Allied 
and Associated Powers with Russia or 
Russian states. 



PART IV.— GERMAN RIGHTS AND INTER- 
ESTS OUTSIDE OF GERMANY. 



Article 118. In territory outside of her 
European frontiers as fixed by the treaty 
Germany renounces all rights, titles and 
privileges whatever in or over territory 
formerly belonging to her or to her allies, 
and undertakes to recognize any measures 
taken with regard to same. 



!n this general renunciation it is not clear 
in whose favor it is made. 



SECTION I.— GERMAN COLONIES. 



Article 1 1 9. Germany renounces in favor 
of the Principal Allied and Associated 
Powers all her rights and titles over her 
oversea possessions. 

Article 120. All movable and immovable 
property belonging to Germany or a Ger- 
man state shall pass to the government 
exercising authority over such territories, 
in accordance with Article 257, which de- 
clares that no portion of the public debt 
shall be assumed, that no credit shall be 
given to Germany on the reparation ac- 
count, and that such property taken over 
shall include the private property of the 
former German emperor as well as that 
of other royal personages. 

Article 121. The provisions of Sections 1 
and IV of Part X shall apply to such ter- 
ritories whatever the government adopted. 
Section I of Part X provides for the en- 
joyment of economic privileges in Ger- 
many with respect to the produce and 
manufactures of such territories. 

Section IV provides for the confiscation 
of all private property of German nationals 
and its application toward the settlement 
of claims and indemnities; and for resti- 
tution or compensation with respect to all 
private property of nationals of the Allied 
and Associated governments in German 
hands. 



See Comment opposite Articles 99, 104 
and 107. 



See Comment opposite Article 39. 



See Comment opposite Article 74. 



— 38 — 



Article 122. The government exercising 
authority over such territories may make 
such provisions as it thinks fit with refer- 
ence to repatriation of German nationals 
and to the conditions upon which German 
subjects of European origin shall, or shall 
not, be allowed to reside, hold property, 
trade or exercise a profession. 



In no treaty of peace imposed in modern 
times is to be found a provision comparable 
to this in severity toward individuals of the 
enemy country. Not only are these private 
persons lo be despoiled of their property 
but they may be denied the right to hold 
property, to trade or practice a profession, 
or they may be expelled en masse. All re- 
sponsibility to assist in their repatriation is 
denied. 



Article 123. The provisions of Article 260 
apply as to all agreements concluded with 
German nationals in such territories. Ar- 
ticle 260 gives to the Reparation Commis- 
sion power to cause Germany to dispossess 
her nationals of any rights or interests they 
may have in any public utility or conces- 
sion operating in Russia, China, Turkey, 
Austria, Hungary and Bulgaria, or in any 
ceded ierritories, and turn the same over 
to the Reparation Commission. Germany 
shall be responsible for indemnifying her 
nationals so dispossessed. 



See Comment opposite Article 74. 



Article 124. Germany undertakes to pay for 
damage suffered by French nationals in 
the Cameroons at the hands of German 
civilian* or military forces, in accordance 
with an estimate to be presented by 
France. 



See Comment opposite Article 63, subsec- 
tion (1). 

The irresponsible acts of civilians of a 
belligerent government can not form the legal 
basis of a claim against his government. With 
respect to such cases the exaction is dis- 
guised indemnity. 



Article 125. Germany renounces all rights 
under the conventions of November 1 4, 
1911, and September 28, 1912, relating to 
Equatorial Africa and undertakes to pay 
to the French government, on its estimate, 
all deposits, credits, advances, etc., effect- 
ed in virtue of these agreements in favor 
of Germany. 



By the conventions of November 14, 1911, 
France ceded to Germany 107,000 square 
miles of Equatorial Africa, with a popula- 
tion of 1,000,000 as the price for German 
recognition of the French protectorate in 
Morocco. This area will thus come back to 
France, giving her a total of about 775,000 
square miles and 10,000,000 of negroes in 
this colony. 



Article 126. Germany undertakes to accept 
and observe the agreements made or to be 
made by the Allied and Associated Powers 
or some of them with any other power 
with regard to the trade in arms and 
spirits, and to the matters dealt with in 
the General Act of Berlin of February 26, 
1885, the General Act of Brussels of July 
2, 1890, and the conventions completing 
or modifying the same. 



It is incorrect, says Oppenheim (Int. Law, 
Vol. 1, p. 368, n.), to maintain that the law 
of nations has abolished slavery, but there 
is no doubt that the conventional law of na- 
tions ha3 tried to abolish the slave trade. 

Three important general treaties have 
been concluded for that purpose during the 
nineteenth century, since the Vienna Con- 
gress — namely, ( I ) the treaty of London, 
1841, between Great Britain, Austria, France, 
Prussia and Russia; (2) the General Act of 
the Congo Conference of Berlin, 1885, and 
(3) the General Act of the Anti-Slavery 
Conference of Brussels, 1890. 

Of the principal civilized states ratifying 
this last international effort to abolish human 
slavery in Africa, France alone ratified with 
so many reservations as practically to have 
freed herself from its obligations. 

(See reservations in act of ratification of 
General Act of Congo Conference by the 
United States Senate disclaiming approval of 
African Colonies, etc.; 2 Malloy, p. 1991.) 

Article 126 does not indicate what the 



— 39 



Allied and Associated Powers or some of 
them contemplate, whether a tightening or a 
relaxation of the obligations. 



Article 12 7. TI12 native inhabitants of the 
former German oversea possessions shall 
be entitled to the diplomatic protection 
of the govern-rients exercising authority 
over those territories. 



This is confirmation of the passage of 
such territories under the sovereignty of the 
state to which they are allotted, since the 
exercise of diplomatic protection is only pos- 
sible as an incident to the possession of ex- 
ternal sovereignty. 



SECTION II.— CHINA. 



Article 128. Germany renounces in favor 
of China all benefits and privileges result- 
ing from the provisions of the final proto- 
col signed at Pekin on September 7, 1901, 
and from all annexes, notes and documents 
supplementary thereto. She likewise re- 
nounces in favor of China any claim to 
indemnities accruing thereunder subse- 
quent to March 14, 1917. 



It will be noted that with respect to China 
no declaration is made to the effect that all 
treaties and agreements are abrogated, as is 
done in other instances (infra, Articles 135, 
138, 148), but there is here only a renun- 
ciation by Germary. 

Among the benefits and privileges of the 
protocol of September 7, 1S01, was the com- 
memorative arch erected in Peking to Baron 
von Kettclcr at the demand of Germany. 

Germany also received economic privileges 
and an interest in the total Boxer indemnity 
of $328,000,000, payable in 39 years. 



Article 129. China need not grant Ger- 
many the advantages and privileges en- 
joyed by the other High Contracting 
Parties under the treaties of August 29, 
1902, and September 2 7, 1905. 

Article 130. Germany cedes to China all 
the buildings, wharves, pontoons, barracks, 
forts, arms, vessels and other public prop- 
erty which are situated or may be in the 
German concessions at Tientsin and Han- 
kow or elsewhere in Chinese territory, ex- 
cept as otherwise provided in Section VIII, 
relating to Shantung. Consular and dip- 
lomatic residences or offices and property 
in the Legation Quarter are also excepted. 



These concessions comprise comparatively 
small areas which have been wrung from 
China by all of the European powers in ad- 
dition to their so-called "leased territory" in 
China. The titles in all instances are found- 
ed on force or threats of force, though the 
German concessions only are canceled. 

Plainly, China can not be bound by any 
provisions of the treaty unless and until she 
ratines it. 



Article 131. Germany undertakes to restore 
to China within twelve months all astro- 
nominal instruments which her troops in 
1900-1901 carried away from China, and 
to defray all expenses incident thereto. 



Nothing is said of restitution by any of 
the other High Contracting parties, whose 
troops, with the Germans, to quote the emi- 
nent English authority Spaight, indulged in 
"looting and robbery, naked and unashamed"; 
nor do Great Britain and France offer to re- 
turn from their museums any of the works 
of art taken from the Summer Palace at 
Pekin in 1860, yet the Grand Allies com- 
pelled France to recognize the inviolability of 
property of rare artistic or scientific value in 
1815 and to restore the same, even though it 
had passed to France by express treaty stipu- 
lation. (Final Act, Congress of Vienna, June 
9, 1815.) 



Article 132. Germany agrees to the abro- 
gation of the leases under which the Han- 
kow and Tientsin concessions are held. 

"China, restored to the full exercise of 
her sovereign rights in the above areas, 



There is an affectation of virtue in this act 
of restoring China "to the full exercise of 



40 



declares her intention of opening them to 
international residence and trade." 



Article 133. Germany waives all claims 
arising out of the capture and condemna- 
tion of German ships in China and the 
liquidation, sequestration or control of 
German property, rights and interests in 
China since August 14, 1917. Such prop- 
erty may be retained and used to satisfy 
clair.-s cf Chinese nationals, any balance to 
be turned over to the Reparation Com- 
mission. 



her sovereign rights," but how little ground 
there is for it can be seen from the words 
immediately following, which plainly put 
those sovereign rights in a strait- jacket; 
whatever is given is given to be immediately 
taken away. 

The law forbids the capture and condem- 
nation of enemy ships found in the waters of 
a belligerent on the outbreak of war. They 
may be seized and used, but only under an 
obligation to make restitution and compen- 
sation. (Report of American Delegation to 
the Hague Conference of 1907. The Hague 
Peace Conferences, 1 Scott, pp. 556-568.) 



Article 134. Germany renounces in favor 
of Great Britain German state property in 
the British concession at Shameen at Can- 
ton, and in favor of France and China 
conjointly the property in German schools 
in the French concessions at Shanghai. 



It would appear that China is the logical 
beneficiary of this German state property in 
both instances, being the sovereign of the 
territory in which it is situated. 



SECTION III.— SIAM. 



Article 135. Germany recognizes that all 
treaties, conventions and agreements be- 
tween her and Siam, and all rights, title 
and privileges derived therefrom, includ- 
ing all rights of extra-territorial jurisdic- 
tion, terminated as from July 22, 1917. 



The effect of this Article is to absolve 
Siam from responsibility for any breaches of 
treaty obligations from the date mentioned. 

The outbreak of war does not abrogate all 
treaties; only those are annulled or sus- 
pended which are incompatible with the state 
of war, such as treates of commerce and 
navigation. (5 Moore, pp. 376-377.) 

Those treaties contemplating a permanent 
arrangement of things, and those entered into 
with a view to war, remain in force. (Scott, 
cases, 4128; Lawrence, 4th ed., Sec. 146.) 

As to the abrogation of the right of extra- 
territorial jurisdiction in Siam, enjoyed by 
Germany along with all other civilized states, 
it may be asked whether or not Germany 
alone is to be denied this protection for her 
nationals in Siam? Extra-territorial jurisdic- 
tion is instituted by civilized states through 
treaty in backward states in order that their 
nationals may not be subjected to legal sys- 
tems that are incompatible with enlightened 
principles of justice. In many backward 
states their so-called legal systems authorize 
practices that are utterly barbarous. As their 
systems improve and approximate accepted 
standards the right of extra-territoriality is 
yielded, as in the recent case of the powers 
with respect to Japan. 

There is no principle in morals that can 
justify the denial of extra-territorial jurisdic- 
tion to Germany in such cases. 



Article 136. All German public property, 
with the exception of diplomatic and con- 
sular offices, pass ipso facto to Siam with- 
out compensation, and all private property 
of German nationals in Siam may be re- 



See Comment opposite Article 74. 



— 41 — 



tained and applied to satisfy Siamese claim- 
ants. 



Article 13 7. Germany waives all claims on 
account of seizure or condemnation of 
German ships in Siamese waters, the liqui- 
dation of German property or the intern- 
ment of German civilians. 



It appears that the Allied and Associated 
Powers alone are to have the benefit of exist- 
ing law instituted for the universal protec- 
tion of property and peraons. 



SECTION IV.— LIBERIA. 



Article 138. Germany renounces all rights 
and privileges arising from the arrange- 
ments of 1911 and 1912 regarding the 
nomination of a German receiver of cus- 
toms. 



Article 1 39. Germany recognizes that all 
treaties between her and Liberia termi- 
nated from August 4, 1917. 



Article 140. The property, rights and in- 
terests of Germans in Liberia may be re- 
tained and used to satisfy Liberian claim- 
ants. 



In 1912 a loan of $1,700,000 was raised, 
secured by customs rubber tax and tax on 
native laborers shipped from Liberia, which 
was administered by an American General 
Receiver and British, French and German 
Receivers. Military police were at the same 
time placed under control of American mili- 
tary officers. 

The treaty pretends to adopt as a princi- 
ple that the outbreak of war automatically 
abrogates all treaties and agreements of ev- 
ery character (vide, Comment opposite Arti- 
cle 135), yet in the case of China only a 
few specified conventions and agreements are 
declared "renounced" by Germany. (See 
Comment, infra, opposite Article 156.) 

No specific provision appears to be made 
for the taking over of German public prop- 
erty in Liberia. 

See Comment opposite Article 74. 



SECTION V.— MOROCCO. 



Article 141. Germany renounces all rights 
and privileges under the General Act of 
Algeciras of April 7, 1906, and by the 
Franco-German agreements of February 9, 
1909, and November 4, 1911. 



France is thus left a free hand in Morocco, 
and is restored to an even more favorable 
position than before Germany forced her par- 
ticipation through the Agidir and other inci- 
dents. Although the integrity of Morocco 
has been and is a subject of guarantee, its 
formal reduction to a French colony appears 
not far distant. This is forecasted in the 
Article immediately following. 



Article 142. Germany recognizes the French 
protectorate in Morocco and renounces the 
regime of the capitulations therein; that is 
to say, extra-territorial jurisdiction. 



See Comment opposite Article 135. 



Article 143. The Sherifian government shall 
have complete liberty in regulating the 
status of German nationals. 



See Comment opposite Article 122. 



Article 144. All private and public Ger- 
man property in Morocco, movable and 
immovable may be taken over, the public 
property passing to the Sherifian empire 
(France), and the private property to 
satisfy claimants. 



See Comment opposite Article 74. 



— 42 — 



Article 145. Germany shall ensure the 
transfer to a person named by France of 
all German shares in the State Bank of 
Morocco, Germany being responsible for 
indemnifying private owners thus dispos- 
sessed. 



Ibid. 



Article 146. Moroccan goods entering Ger- 
many shall enjoy the privileges accorded 
French goods. 

SECTION VI.— EGYPT. 



Article 147. Germany recognizes the Brit- 
ish protectorate over Egpyt and renounces 
the regime of the capitulations. 



Until December 18, 1914, the date of the 
British proclamation of a Protectorate, Tur- 
key was the nominal sovereign of Egypt, 
though constantly, since the British occupa- 
tion in 1882, Great Britain had increased her 
control over the administration. Egypt, 
though a vassal state, was nevertheless con- 
sidered a part-sovereign member of the fam- 
ily of nations, capable of issuing a proclama- 
tion of neutrality, sending and receiving con- 
suls as diplomatic agents and of holding joint 
sovereignty with Great Britain over Soudan. 
(1 Oppenheim, p. 142.) This position of 
Egypt is clearly impeached by British action. 



Article 148. All treaties, agreements and 
contracts concluded by Germany with 
Egypt are abrogated. 



See Comment opposite Articles 135 and 
139. 



Article 149. Until Egyptian law is substi- 
tuted by a reorganization of the judicial 
system British consular tribunals will as- 
sume jurisdiction over German nationals 
and property. 



It will be observed not even this alterna- 
tive was provided with respect to the position 
of German nationals in Siam. 



Article 150. The Egyptian government 
shall have complete liberty in regulating 
the status of German nationals in Egypt. 



See Comment opposite Article 122. 



Article 151. Germany consents to the abro- 
gation of the decree issued by the Khedive 
on November 28, 1904, relating to the 
public debt. 

Article 1 52. Germany consents to the 
transfer to Great Britain of the powers 
conferred on the Sultan of Turkey by the 
convention of October 29, 1888, concern- 
ing the Suez Canal. 



Article 153. All German public property 
in Egypt passes to the Egyptian govern- 
ment without payment. 

All private German property may be 
retained and applied toward satisfaction of 
claims. 



See Comment opposite Article 74. 



Article 154. Egyptian goods entering Ger- 
many shall enjoy the same privileges ac- 
corded British goods. 



— 43 — 



SECTION VII— TURKEY AND 
BULGARIA. 

Article 155. Germany undertakes to recog- 
nize any arrangements made with Turkey 
and Bulgaria with reference to any rights, 
interests and privileges whatever of Ger- 
many or German nationals in those coun- 
tries. 



Apparently such property is to be confis- 
cated as in all other instances. 



SECTION VIII.— SHANTUNG. 

Article 156. Germany renounces in favor 
of Japan all her rights, title and privileges 
— particularly those concerning the terri- 
tory of Kiaochow, railways, mines and sub- 
marine cables — which she acquired in vir- 
tue of the treaty concluded by her with 
China on March 6, 1898, and of all other 
arrangements relative to the province of 
Shantung. 

All German rights in the Tsingtao- 
Tsinanfu railway, including its branch lines, 
together with its subsidiary property of 
all kinds, stations, shops, fixed and rolling 
stock, mines, plant and material for the 
exploitation of the mines, are and remain 
acquired by Japan, together with all rights 
and privileges attaching thereto. 

The German state submarine cables from 
Tsingtao to Shanghai and from Tsingtao to 
Chefoo, with all the rights, privileges and 
properties attaching thereto, are similarly 
acquired by Japan, free and clear of all 
charges and encumbrances. 



It will be observed first that with respect 
to China, one of the Allied and Associated 
Power;;, the doctrine that the supervention of 
a state of war automatically abrogates all 
treaties and agreements is not applied. 

On the contrary, the German lease on Kiao- 
chow, together with privileges and conces- 
sions in Shantung, are held to be so far con- 
tinuing as to be capable of transfer by Ger- 
many to Japan; and this in spite of the fact 
that by the terms of the treaty of March 8, 
1898, the privileges are non-transferable. 

Yet this treaty, wrung from China by Ger- 
many under a threat of force, was such an 
agreement as might properly be held to have 
been annulled by the entrance of China into 
the war. Treaties granting privileges, says 
Snow (Int. Law, p. 99), are abrogated by 
war. 

It is true that in May, 1915, Japan wrung 
from China, under a threat of war, an agree- 
ment to abide by such disposition of Kiao- 
chow and the privileges in Shantung, as 
Japan and Germany might ultimately agree 
upon; yet the perfidy of the whole affair was 
such as to justify the reprobation cf the civil- 
ized world. So lacking was the proceeding 
in morals that Japan preferred to abandon 
all reference to it as a basis of right in the 
Treaty of Peace and fell back on the doubt- 
ful legal ground appearing in the article. 

It is plain, however, that from August 14, 
1917, the date China declared war, Ger- 
many's rights in Kiaochow lapsed. A re- 
nunciation by Germany to Japan of something 
not legally possessed is therefore a mere null- 
ity. (See The Shantung Question, by Al- 
pheus H. Snow, The Nation, Vol. CIX, Bo. 
2829, September 20, 1919.) 

All property belonging to the German em- 
pire and the German states in China became 
liable to seizure as fair prize by China on 
August 14, 1917. 

As to the private property of German na- 
tionals, while it became liable to sequestra- 
tion, it did not in law become liable to con- 
fiscation, although private German property 
in concessions which China might consider 
prejudicial to public policy might be can- 
celed, with or without compensation as the 
case may be. 

No distinction appears to be made, how- 
ever, in the attempt to grant all property to 



— 44 — 



Article 157. Movable and immovable prop- 
erty of the German state, as well as all 
rights which Germany might claim, are ac- 
quired by Japan free and clear of all 
charges and incumbrances. 



Japan, although the phraseology is charac- 
teristically Japanesque. 

This enemy state property being within 
the restored sovereign jurisdiction of China, 
it is for China alone to say whether she will 
exercise her war right to confiscate it. No 
third state can possibly acquire legal title to 
it, save through China's previous seizure or 
approval. 



Article 158. Germany will hand over to 
Japan within three months all records, reg- 
isters, archives, deeds and documents of 
every kind, and will give particulars of all 
treaties, arrangements or agreements relat- 
ing to right3, title and privileges in Shan- 
tung. 



If an international court of arbitral justice 
could take cognizance of this provision it 
could find no legal ground upon which to 
compel performance by Germany for the rea- 
sons set out (supra, Comment opposite Arti- 
cle 156). It is a pure arrangement of force 
in contempt of law. 

If a court of arbitral justice is to be set up 
by the League of Nations it is pertinent to 
ask v/hether the Allied and Associated Powers 
would consent to a review of this transaction 
and to abide by an award in conformity with 
the law? 



Part V. MILITARY, 
CLAUSES. 



NAVAL AND AIR 



SECTION I.— MILITARY CLAUSES. 
Chapter I. 

Articles 159-163. These Clauses seek to re- 
duce Germany's military forces to fixed 
limits. 

Chapter II. 

Articles 164-172. These Clauses seek to 
establish equipment limits and exclude im- 
portations. They prohibit the manufacture 
of poisonous gases to Germany while de- 
manding that Germany reveal to the Prin- 
cipal Allied and Associated Powers all 
formulae with respect to her manufacture 
of such gases and explosives. 

Chapter III.— RECRUITING AND MILITARY 
TRAINING. 



Articles 173-179. These Clauses prohibit 
universal military service in Germany and 
place restrictions on training calculated to 
ensure the maxima in military forces pre- 
viously referred to. 

Chapter IV.— FORTIFICATIONS. 

Article 1 80. This Clause provides for de- 
struction and disarmament of certain Ger- 
man fortresses. 



It may be remarked that although Germany 
is forbidden to have universal military service, 
most of the Allied and Associated Powers, in- 
cluding the United States, have adopted it in 
their military programs. 



— 45 — 



SECTION II.— NAVAL CLAUSES. 



Articles 181-197. These Clauses fix the 
number and type of vessels Germany may 
have, forbid the building of others, for- 
bid the construction by Germany of sub- 
marines, provide for the sweeping up of 
mines, fix the naval personnel, limiting it 
to voluntary engagements for long periods, 
and regulate wireless. 



It will be observed that no obligation has 
been assumed by the Allied and Associated 
Powers to forego the building of submarines. 
On the contrary, the submarine occupies a 
conspicuous place on all the new naval pro- 
grams, 



SECTION III.— AIR CLAUSES. 

Articles 198-202. These Clauses fbrbid 
Germany to possess military or naval air 
forces, provide for the demobilization of 
existing forces, admit freedom of passage 
to Allied and Associated aircraft, and 
compel the surrender of all aircraft and 
parts thereof by Germany. 

SECTION IV.— INTER-ALLIED COMMIS- 
SIONS OF CONTROL. 

Articles 203-210. Inter-Allied Commissions 
of Control shall be appointed by the Prin- 
cipal Allied and Associated Powers to en- 
f; rce all the provisions of the preceding 
three sections. They may establish them- 
selves at the seat of the German govern- 
ment and must receive every facility in 
their missions. Their orders shall be car- 
ried out at Germany's expense and the up- 
keep and cost of such Commissions shall 
be borne by Germany. 

SECTION V.— GENERAL ARTICLES. 

Article 211. Germany mu3t within three 
months conform her laws to the preceding 
sections. 



Part VI. PRISONERS OF WAR AND 
GRAVES. 

SECTION I.— PRISONERS OF WAR. 



Articles 214-216. These Articles provide 
for repatriation of prisoners of war as soon 
as possible after the peace, including Ger- 
man nationals who were habitually resi- 
dent in Allied or Associated countries. 



By Articles 3 and 18 of the Armistice of 
November 11, 1918, immediate repatriation 
was stipulated for all interned civilians, in- 
cluding persons under trial or convicted, and 
hostages, as well as inhabitants of occupied 
territories, who were nationals of Allied or 
Associated governments. There was no reci- 
procity. 



Article 217. Germany shall bear the whole 
cost of repatriation. 



This expense is usually included in the 
maintenance of prisoners' accounts and set- 
tled by the payment of any balance due after 
comparison of accounts. (See Article XIII, 
Treaty of Portsmouth, 1905; see Article 224, 
infra.) 



— 46 — 



Articles 218-219. Prisoners of war and in- 
terned civilians awaiting disposal or under- 
going sentence for offenses against disci- 
pline shall be repatriated despite that fact, 
but those awaiting disposal or under sen- 
tence for common law crimes may be re- 
tained. 



This, being reciprocally applicable, is in 
accordance with practice and the law. 



Article 220. The Allied and Associated gov- 
ernments reserve the right to make repa- 
triation of German nationals conditional up- 
on the immediate release of any Allied or 
Associated nationals in Germany. 



Article 221. Germany undertakes to give 
every facility to prisoners' Commissions to 
facilitate inquiries concerning missing pris- 
oners and to punish any German nationals 
who may have concealed the presence of 
any Allied or Associated prisoners, or who 
have neglected to reveal the presence of 
such prisoners. 

Article 223. Germany undertakes to restore 
without delay all articles, money, securities 
and documents belonging to nationals of 
Allied and Associated governments which 
have been retained by Germany. 



It will be observed that this obligation is 
not set out as reciprocal, yet it is a settled 
principle of the laws of war that the private 
property of prisoners of war remains their 
property and must be restored. (Spaight, 
pp. 279-280; Ariga, Le Guerre russo-japo- 
naise, p. Ill, n.) 

Is it conceivable that the Allied and Asso- 
ciated governments wish to reserve the right 
to set aside as to themselves the binding 
force of such an enlightened rule of war 
law? Are no exceptions whatever to be 
made in the repudiation of the principle of 
inviolability of private property? 



Article 224. Repayment of sums due for 
maintenance of prisoners is reciprocally 
waived. 



SECTION II.— GRAVES. 

Article 225. The Allied and Associated gov- 
ernments and Germany engage to respect 
and maintain graves of soldiers and sailors 
buried in their respective territories. They 
agree to recognize any commission appoint- 
ed by an Allied or Associated government 
for the purpose of identifying, registering, 
caring for or erecting suitable monuments 
over said graves. 

Furthermore, they agree to afford, as far 
as requirements of public health allow, ev- 
ery facility for giving effect to requests 
that the bodies of their soldiers and sailors 
may be transferred to their own country. 



It will be observed that Allied and Asso- 
ciated governments alone are to be permitted 
to appoint representatives to identify, register 
and care for the graves of their dead. The 
German government is denied these rights 
with respect to her dead. The world was 
entitled to expect some magnanimity and 
generosity at least in dealing with a subject 
of such peculiar sanctity. 



Article 226. Graves of prisoners of war and 
civilians shall be maintained a3 provided 
in Article 225, and each government shall 
furnish the other with all information with 
respect to same. 



— 47 — 



Part VII. PENALTIES. 



Aiticle 227. The Allied and Associated 
Powers publicly arraign William II of 
Hohenzollern, formerly German emperor, 
for a supreme offense against international 
morality and the sanctity of treaties. 

A special tribunal will be constituted 
to try the accused, thereby assuring him 
the guarantees essential to the right of de- 
fense. It will be composed of five judges, 
one appointed by each of the following 
powers, namely: the United States of Amer- 
ica, Great Britain, France, Italy and Japan. 

In its decision the tribunal will be guided 
by the highest motives of international pol- 
icy, with a view to vindicating the solemn 
obligations of international undertakings 
and the validity of international morality. 
It will be its duty to fix the punishment 
which it considers should be imposed. 



However black the iniquity of the former 
German emperor is under the moral law, his 
offenses are not crimes under any known 
system of jurisprudence with this exception: 
that if it can be proved — and it probably 
can be that the former emperor is the au- 
thor of any orders directing the violation of 
the laws of civilized warfare, he is triable 
before the military tribunal of any country 
suffering through the carrying out of such 
orders. In that respect his liability appears 
to be unquestionable. He was a military per- 
sonage in addition to a ruler. 

But he is not arraigned on the charge of 
being the responsible author of violations of 
the laws of war; ha is arraigned "for a su- 
preme offense against intarnational morality 
and the sanctity of treaties." There is no 
such offence in any penal code known to 
man, and it is the most elemental principle 
of criminal jurisprudence that no one can be 
punished for acta which, when committed, 
did not constitute a crime. We see this prin- 
ciple expressly embodied in our constitutional 
system in the prohibition against the enact- 
ment by Congress of an ex post facto law. 

The Society of Nations may by agreement 
establish for the future a system of interna- 
tional criminal law, including as crimes, of- 
fenses against international morality and the 
faith of treaties; they may institute a court 
and confer jurisdiction as to the future; but 
to set up a court and assume to create crimes 
out of past acts condemned by no system of 
law is to do violence to the basic principles 
of jurisprudence. 

That the Allied and Associated govern- 
ments can, as a precautionary measure of 
self-defense, place the former German em- 
peror in a position where he can no longer 
menace their safety goes without saying. 



The Allied and Associated Powers will 
address a request to the government of the 
Netherlands for the surrender to them of 
the ex-Emperor in order that he may be 
put on trial. 



Such offenses as the former German em- 
peror is guilty of are essentially political in 
their character, the principal offense being 
the initiation of a war of aggression against 
Europe. 

It is an elemental principle of the law of 
nations, embodied in municipal systems and 
in treaties universally, that no state shall be 
bound to deliver up political offenders who 
have fled to their territories. The State in 
which asylum has been found may deliver 
up such fugitive, but it is wholly for that 
state to decide. 

There is this to be said with respect to 
the rights of the Allied and Associated gov- 
ernments in relation to the ex-Emperor: that 
if his situation in Holland constitutes a men- 
ace to the Allied and Associated governments 
of sufficient gravity they may invoke the 
rights of self-preservation in eliminating that 
menace. And under cases of extreme neces- 
sity the vindication of this right may allow- 
ably involve what would ordinarily amount 



48 — 



Article 228. Germany recognizes the right 
of the Allied and Associated governments 
to bring before military tribunals persons 
accused of violations of the laws of war. 
Germany will hand over all persons who 
are specified. 



Article 229. Persons guilty of criminal acts 
against the nationals of one of the Allied 
and Associated Powers will be brought be- 
fore the military tribunals of that power. 

Persons guilty of criminal acts against 
the nationals of more than one of the Al- 
lied and Associated Powers will be brought 
before military tribunals composed of mem- 
bers of the Powers concerned. The ac- 
cused shall be entitled to have his own 
counsel. 



lo an infraction of the law of nations. (Hall, 
268; 1 Westlake, 302.) 

In other words, assuming the necessity to 
exist, the Allied and Associated governments 
might be justified even in the use of force 
to recover the person and render the ex- 
Emperor harmless. (Hershey, pp. 144-146; 
yet see Queen vs. Dudley et al., 14 Q. B D., 
273.) 

The procedure here indicated appears fully 
to conform to the legal requirements. There 
is no question of the jurisdiction of military 
tribunals over crimes against the laws of war. 
In all sentences of death, however, it would 
seem necessary that some reviewing authority, 
analogous to the Commander-in-Chief, exist. 
(Spaight, pp. 461-462.) 

This is one of the most wholesome of all 
the provisions in the Treaty of Peace. It is 
essentially calculated to vindicate that great 
branch of the law of nations comprised with- 
in the laws of war. It will give an added 
sanction of the highest value to that law. No 
belligerent in the future will care to embark 
upon a course of deliberate disregard of the 
laws of civilized warfare v/ith such a deter- 
rent example before its eyes. 

While mixed military tribunals are unusu- 
al, there appears no valid objection to their 
use in the cases indicated. 

The rights of the accused are adequately 
protected by the provision permitting the 
choosing of counsel. 



Article 230. The German government will 
furnish all documents considered necessary 
to the discovery of offenders and the just 
appreciation of responsibility. 



Part VIII. REPARATION. 



SECTION I.— GENERAL PROVISIONS. 



Articles 231-244, together with Annexes 1-4. 
These Articles, affirming Germany's re- 
sponsibility for causing all the loss and 
damage suffered by Allied and Associated 
governments and their nationals, and insti- 
tuting means, including a Reparation Com- 
mission, through which restitution and 
compensation are to be made, have been 
discussed in part. (Infra, opposite Article 
63, together with Annex I, par. 1-10.) 



It is to be noted (Annex II, 11) that the 
Reparation Commission "shall not be bound 
by any particular code or rules of law" or 
rules of evidence. It must necessarily be 
freed from any such obligation if it is to 
carry out certain terms of the treaty. 



Article 232. Germany pledges complete res- 
toration of Belgium, and, in addition, to 
make reimbursement of all sums borrowed 



It may fairly be contended that the exac- 
tion of these conditions rests so far in a 
legal justification as to take them out of the 



— 49 — 



by Belgium of the Allied and Associated 
governments up to November II, 1918, as 
a consequence of the violation of the 
Treaty of Neutralization of 1839. 



category of indemnity. (See Comment op- 
posite Article 63.) Germany, being solemn- 
ly bound to respect the neutrality of Belgium, 
is properly denied the benefits that might ac- 
crue to a belligerent not so bound and 
clothed with the rights of war in their full 
force. Hence, it may be argued, that all 
destruction wrought, including that of the 
Allied and Associated governments in repell- 
ing Germany, all requisitions, contributions 
and fines imposed, and all other acts preju- 
dicial to Belgium, must be repaired by Ger- 
many. 

No warrant exists, however, for the plac- 
ing of the other Allied and Associated gov- 
ernments in the category with Belgium. With 
respect to them Germany was legally at war, 
and as a belligerent she possessed ipso facto 
the right to enter upon and carry out de- 
struction having a military object (see supra, 
opposite Article 63, par. 9); she possessed 
the war rights to levy requisitions, contribu- 
tions and fines (see supra, opposite Article 
63, par. 10). 

Only where Germany exceeded the limits 
of these rights — and those instances were 
numberless — does a legal justification for the 
exaction of reparation exist. (Spaight, 462- 
463; II Oppenheim, pp. 319-321.) 

To determine the instances and degree of 
responsibility of Germany for violations of 
the laws of war would require inquiry into 
the facts — unquestionably a long and tedious 
process — and an award in each case. The 
alternative of agreement upon lump sums 
covering estimated unlawful damage and the 
like would not have been open to serious 
objection. Either of these courses would 
have tended to establish more firmly and 
promote respect for law. In ignoring these 
settled principles, defining war rights and du- 
ties as to persons and property, the Allied 
and Associated governments wipe out the 
whole progressive development of the law 
and throw the world back upon the doctrine 
of the unlimited right of the victor obtaining 
through the Middle Ages. 

As the laws of war permit of certain de- 
struction of property, so they allow acts of 
violence against the persons of civilians un- 
der certain circumstances, yet no notice is 
taken of these distinctions in the provisions 
looking to the compensation of civilians of 
the Allied and Associated governments in all 
cases of injury and damage (see supra, op- 
posite Article 63, par. 2). Civilians (non- 
combatants) have certain rights and duties 
arising in times of belligerency, and their im- 
munity from intentional injury is predicated 
upon the performance of those duties. Among 
those duties is abstention from all war-like 
acts. A civilian engaging in war-like con- 
duct is a war criminal. Many of such per- 
sons deserve the affectionate remembrance of 
their own countries, but their punishment is 
none the less the lawful right of the enemy. 
(Spaight, 335 et seq.) 

If it is proposed to enforce reparation in 



— 50 



behalf of civilians of this class, described in 
law as unlawful belligerents, as well as in 
behalf of those suffering from acts in ex- 
cess of the lawful exercise of power, the 
whole benign system of principles relating 
to combatants and non-combatants and de- 
fining their rights and duties is confounded. 
It does not constitute progress; it does con- 
stitute reaction. (See Spaight, Chapter III, 
pp. 34-72.) 



Annex III. 



( 1 ) Germany recognizes the right of 
the Allied and Associated Powers to re- 
placement, ton for ton, and class for class, 
of all merchant ships and fishing boats 
lost or damaged owing to the war. 

Germany will hand over all merchant 
ships, public and private, which are of 
1600 tons and upward; one-half of all 
ships between 1000 and 1600 tons; one- 
quarter of all steam trawlers and one- 
quarter of all fishing boats. 



The right to capture and destroy an ene- 
my's merchant ships, under certain limita- 
tions, including a general obligation to pro- 
vide for the safety of passengers and crew, 
is a settled one under the laws of maritime 
warfare. (II Oppenheim, 242-245; II West- 
lake, 309-312.) 

These limitations include a summons or 
warning as a condition precedent to any re- 
sort to force, a qualification constantly and 
deliberately violated by Germany in her sub- 
marine warfare. 

In such instances, it may be said generally, 
the destruction was unlawful and involves 
liability to make compensation. But no dis- 
tinction is made, so far as replacement is con- 
cerned, with respect to those vessels lawfully 
warned and sunk during resistance or flight 
and those prizes destroyed at sea under law- 
ful conditions. So far as the latter category 
is concerned, replacement can be viewed only 
as indemnity; not as reparation. 

As to replacement of fishing boats of the 
Allied and Associated governments, the law 
recognizes coast-fishing vessels alone as ex- 
empted from capture and destruction, and 
then only on condition of their innocent em- 
ployment. It is well known that the fishing 
fleets of all the maritime states in the Great 
War were very largely used in mine-planting 
and mine-sweeping, under which circum- 
stances no immunity could attach to them 
under the law. (Hall, Int. Law, 6th ed., pp. 
444-445; Pacquette Habana, 195, U. S., 
677.) 

To enforce replacement in such cases must 
necessarily constitute indemnity, rather than 
reparation for wrong done. 

As to the private property in ships to be 
handed over, see Comment opposite Article 
74. 



(8) Germany waives all claims against 
Allied and Associated governments in re- 
spect of the detention, employment, loss 
or damage of any German ships. 



German vessels found in the territorial 
waters of most of the states at war with 
Germany were taken over by such states un- 
der a right to use them, though with an im- 
plied obligation to restore them at the peace 
and make compensation. They may not be 
confiscated. (See Report of American Dele- 
gation to Hague Conference, 1907, cited 
supra, opposite Article 133.) So far, there- 
fore, as the taking over of such vessels other- 
wise innocent is concerned, it must be con- 
sidered as indemnity, and not as reparation. 



51 — 



One of the results is a repudiation of the 
age long policy of the United States looking 
to the approximation of the laws of maritime 
warfare to the laws of land warfare in the 
matter of immunity of private property. (7 
Moore's Digest, pp. 460, 461, 462, 467; 
McKinley's annual message, December 5, 
1898; Roosevelt's annual message, Decem- 
ber 7, 1903.) 



(9) Germany waives all claims as to 
vessels or cargoes sunk by the Allied and 
Associated Powers. 



A victorious belligerent may be justified in 
practice in declining to have the legality of 
its actions inquired into by the vanquished, 
but such a course can not contribute to 
clarification and a firmer establishment of 
the law. 



Annex IV. 

(I), (2), (3), (4), (5). These para- 
graphs provide for the immediate delivery 
by Germany to the Allied and Associated 
Powers, through the Reparation Commis- 
sion, of animals, machinery, tools and like 
articles which have been seized, consumed 
or destroyed by Germany in Allied and 
Associated countries, lists of such articles 
desired to be filed by Allied and Associ- 
ated governments. Machinery, equipment, 
tools and the like are to be demanded not 
in excess of thirty per cent of the quan- 
tity of such articles in any one establish- 
ment or undertaking. Services may be 
required toward repairing damage in lieu 
of physical restoration. 



As to animals for food or transport, they 
may rightfully be taken under the war right 
of requisition, a receipt being given. This 
receipt does not imply an obligation on the 
part of the giver to redeem it. (Holland, 
No. Ill; Bordwell, 107, 318.) Yet it is not 
unusual in practice that the giver has been 
compelled to redeem it if he is vanquished. 
That is the extent to which the principle of 
inviolability of private property is satisfied. 
(See supra, opposite Article 63, pars. 8 and 
10.) 

As to machinery, equipment, tools and the 
like, these may also be seized under requisi- 
tion. They may be destroyed as a part of 
some military design to overcome the hostile 
army, under the authority of the laws of war, 
involving no liability to make compensation. 
Liability to make compensation appears to be 
recognized as to certain classes of private 
property taken over by an enemy force for 
use. (Juragua Iron Co. vs. U. S., Sup. Ct., 
Feb. 23, 1909.) 

All of these distinctions are ignored in 
the Articles opposite. 



SECTION II.— SPECIAL PROVISIONS. 



Articles 245-246. These Clauses provide 
for restitution by Germany of trophies, 
works of art, etc., carried away from 
France in 1870-1871; the restitution of the 
original Koran of the Caliph Othman, 
taken from Medina by Turkish authorities, 
and other articles and restitution to the 
University of Louvain of manuscripts, in- 
canabula, books and other objects in num- 
ber and value corresponding to those de- 
stroyed. 



This recalls the enforced restitution of 
works of art seized by Napoleon I in Italy 
upon the entrance into France of the Grand 
Allies in 1815. It is unquestionably settled 
law that property of this character is inviol- 
able. Yet the museums of Europe still hold 
quantities of precious works of the class of 
specially protected property representing the 
so oil 3 of war. 



Under the provisions of Part VIII a 
Reparation Commission is instituted, to be 
composed of one delegate each of the 
United States, Great Britain, France and 
Italy, with a delegate from Japan, Belgium 
or the Serb-Croat-Slovene state sitting un- 
der specified conditions as the fifth mem- 
ber. 



In view of the wide latitude of control of 
German internal affairs placed in the hands 
of the Commission, it is difficult to escape 
the conclusion that for an indefinite period 
at least Germany will cease to be a fully 
sovereign nation. Particularly is this indi- 
cated in the undertaking of Germany to 
pass, issue and maintain any legislation, or- 



— 52 — 



To this Commission is confided the pow- 
er to eniorce the various stipulations for 
reparation and indemnity. The Commis- 
sion may fix as a first installment (wheth- 
er in gold, commodities, ships, securities 
or otherwise) the equivalent of 20,000,- 
000,000 gold marks, nearly $5,000,000,- 
000. The findings of the Commission as 
to the total sums due on account of dam- 
age shall be concluded and notified to 
Germany on or before May 1, 1921. The 
Commission shall thereafter consider the 
resources and capacity of Germany to 

pay- 
Germany further agrees to direct her 
economic resources to reparation relating 
to merchant shipping, to physical restora- 
tion, to coal and derivatives of coal, and 
to dyestuffs and other chemical products, 
to be credited to the reparation account. 

In addition to the total sum fixed, Ger- 
many shall make restitution in cash of cash 
taken away, seized or sequestered and 
shall make restitution of animals, objects 
of every nature and securities taken away, 
seized or sequestered. 

Germany agrees irrevocably to the pos- 
session and exercise by the Commission 
of the power and authority set out in the 
treaty and Germany undertakes to pass, 
issue and maintain in force any legislation, 
orders and decrees that may be necessary 
to give complete effect to the treaty provi- 
sions. 

The Commission may appoint all neces- 
sary officers, agents and employes required 
and may delegate authority to such offi- 
cers. All its proceedings shall be secret 
unless it should decide otherwise for spe- 
cial reasons. Germany may present argu- 
ments as to her ability to pay. The Com- 
mission shall not be bound by any partic- 
ular system or rules of law, but shall be 
guided by justice, equity and good faith. 

The Commission may determine that 
Germany shall cover by way of guarantee 
by an equivalent issue of bonds any 
amount of proved claims not paid in gold, 
ships or otherwise. It shall examine the 
German system of taxation with a view 
to seeing that it is fully as heavy propor- 
tionately as that of any power represented 
on the Commission. 

In order to facilitate the restoration of 
economic life in Allied and Associated 
countries, Germany undertakes to issue 
forthwith 60,000,000,000 marks gold 
bearer bonds and to deliver forthwith a 
covering undertaking in writing to issue a 
further installment of 40,000,000,000 
marks gold bearer bonds of various dates 
and rates of interest largely in the con- 
trol of the Commission. 

In case of any voluntary default by 
Germany the Allied and Associated gov- 
ernments may take any action they deem 
necessary, Germany agreeing not to regard 
any such measures as acts of war. When 
all the amounts due from Germany and 



ders and decrees which may be notified to 
her as necessary to give effect to the treaty. 



53 — 



her allies or the decisions of the Com- 
mission have been discharged the Commis- 
sion shall be dissolved. 



PART IX.— FINANCIAL CLAUSES. 

Article 248. It is declared the cost of repa- 
ration to be a first charge "upon all the 
assets and revenues of the German Empire 
and its constituent states." 



Article 249. Germany shall pay the total 
cost of occupation by Allied and Associat- 
ed armies, including the keep of men and 
beasts, lodging, pay and allowances, and 
the cost of requisitions resorted to by the 
armies of occupation. 



See Comment on Requisitions opposite Ar- 
ticles 428-432. 



Article 254. Where any payment is to be 
made on account of the assumption of a 
portion of the German debt chargeable to 
ceded territory, it shall be made to the 
Reparation Commission and not to Ger- 
many. 

Article 256. Powers to which German ter- 
ritory is ceded shall acquire all property 
and possessions situated therein belonging 
to the German empire, to German states, 
and to the former emperor and other royal 
personages. The acquiring state shall pay 
the equivalent of the value fixed to the 
Reparation Commission for the credit of 
Germany. 

Alsace-Lorraine and territories ceded to 
Belgium are made exceptions as to the 
requirement of payment. 



See Comment opposite Article 39. 



See Comment opposite Article 55. 



Article 257. Where German territory is 
confided to a mandatory no portion of the 
public debt will be assumed nor shall any 
payment be made or credit given on ac- 
count of public property taken over by 
the mandatory. 



Article 258. Germany renounces all rights 
accorded to her or her nationals by trea- 
ties, conventions or agreements of what- 
soever kind, to representation upon or par- 
ticipation in the control or administra- 
tion of Commissions, State Banks, agen- 
cies, or other financial or economic or- 
ganizations of an international character 
in any Allied or Associated country or in 
Austria, Hungary, Bulgaria or Turkey. 



Thus are extinguished all of the once am- 
bitious plan3 cf the German empire in the 
southeast of Europe and in Asia Minor, in- 
cluding the projects of Berlin-to-the-Persian 
Gulf. And thus all portentous obstacles in 
the road to India are cleared away. 

It is not indicated in whose favor the re- 
nunciation is made. 



Article 259. Germany will deliver within 
one month to such authority as the Prin- 
cipal Allied and Associated Powers may 
designate Turkish gold deposited in the 
Reichsbank to secure the first issue of 
Turkish currency notes and other Turkish 
gold on deposit, as well as gold trans- 
ferred by Austria-Hungary as collateral for 
loans. 



— 54— 



Germany confirms her renunciation of 
the Brest-Litovsk and Bucharest treaties 
and will deliver to Roumania or to the 
Allied and Associated governments all 
monetary instruments, specie, securities 
and goods received under these treaties. 

All such sums of money, securities, etc., 
will be disposed of by the Principal Al- 
lied and Associated Powers in a manner 
to be determined by them. 



Article 260. Germany, on demand of the 
Reparation Commission, will become pos- 
sessed of any rights or interests of Ger- 
man nationals in public utilities or con- 
cessions operating in Russia, China, Tur- 
key, Austria, Hungary and Bulgaria, or 
in any territories of those states, and 
transfer the same to the Reparation Com- 
mission. Germany shall be responsible for 
indemnifying her nationals thus dispos- 
sessed and shall receive credit on the 
reparation account for the value of rights 
transferred. 



It will be observed that China, one of the 
the Associated and Allied Powers, is placed 
in the category of enemy countries so far as 
contemplated projects of economic exploita- 
tion are concerned. 



Article 261. Germany will transfer to the 
Allied and Associated Powers any claims 
to payment or repayment by Austria, Hun- 
gary, Bulgaria or Turkey. 



See Comment opposite Article 259 as to 
Bulgaria. 



PART X.— ECONOMIC CLAUSES. 

SECTION I.— COMMERCIAL RELATIONS. 

CHAPTER I.— CUSTOMS REGULATIONS. 

DUTIES AND RESTRICTIONS. 



Articles 264-270. These Articles grant ex- 
ceptional and uniform privileges to Allied 
and Associated governments in the mat- 
ter of duties and charges on their products 
and manufactures entering Germany. 

For a period of five year3 natural and 
manufactured products of Alsace-Lorraine 
shnll be exempt from all customs duties. 

For a period of three years Polish prod- 
ucts shall enjoy like exemption. A simi- 
lar right is reserved for Luxemburg. 



It can not be doubted that these provi- 
sions go far toward limiting the sovereignty 
of Germany. 

In the absence of reciprocity these econo- 
mic measures are in the nature of indemnity. 



CHAPTER II— SHIPPING. 

Article 271. As regards sea fishing, coast- 
ing trade and towage vessels of Allied and 
Associated Powers shall enjoy most-fa- 
vored-nation treatment in German terri- 
torial waters. 



This is clearly a restriction placed upon 
the internal sovereignty of Germany. 



Article 2 72. Germany agrees that all rights 
of inspection and police shall, in the case 
of fishing boats of the Allied Powers, be 
exercised solely by ships of those powers, 
in North Sea fisheries. 



By the International Convention of May 6, 
1882, for the Regulation of the Police of the 
Fisheries of the North Sea, Great Britain, Bel- 
gium, Denmark, France, Germany and Hol- 
land agreed upon certain reciprocal rights 



— 55 — 



CHAPTER III.— UNFAIR COMPETITION. 

Article 274. Germany undertakes to adopt 
legislative and administrative measures to 
repress exportation, manufacture, distribu- 
tion or sale in its territory of all goods 
bearing any marks, names, devices or de- 
scription calculated to convey a false indi- 
cation of origin, type or nature of such 
goods. 

CHAPTER IV.— TREATMENT OF NATION- 
ALS OF ALLIED AND ASSOCIATED 
POWERS. 



of visiting vessels of signatory states by spe« 
cial cruisers. Germany is thus ejected from 
these arrangements. 



Article 276. Germany undertakes: (a) Not 
to subject nationals of Allied and Asso- 
ciated Powers to any prohibition in regard 
to the exercise of occupations, professions, 
trade and industry not equally applicable 
to all aliens; (b) Not to subject them to 
any regulation or restriction not applic- 
able to nationals of the most favored na- 
tion; (c) Not to subject their property, 
rights or interests to any charge or tax 
not imposed on its own nationals or their 
property. 



Compare with action taken in Articles 122, 
143, 150. 



Article 2 78. Germany agrees to recognize 
any new nationality acquired by her na- 
tionals under the laws of Allied and Asso- 
ciated powers or by treaty, and to regard 
them as having severed their allegiance. 



See Comment opposite Article 37. 



Article 279. Germany undertakes to ap- 
prove the designation of Consuls-general, 
Consuls, Vice Consuls and Consular 
Agents by Allied and Associated Powers 
and to admit them to exercise their func- 
tions in German ports and towns. 



The matter of receiving a particular for- 
eign Consul (through issuing an exequatur) 
or dismissing him (through revoking the exe- 
quatur) is a right to be exercised wholly at 
the pleasure of the receiving state, though 
exequaturs are rarely revoked without cause. 

It appears, however, that Germany is de- 
nied the right to decline to receive a desig- 
nated consular officer even though he be per- 
sona non grata. 



CHAPTER V.— GENERAL ARTICLES. 

Article 280. Obligations imposed on Ger- 
many by Chapter I and by Articles 271 
and 272 of Chapter II shall cease in five 
years unless continued by the Council of 
the League of Nations. 

The obligations under Article 276 shall 
continue for five years and may be ex- 
tended for five years. 



Article 281. If the German government en- 
gages in international trade it shall not be 
deemed to have any rights, privileges or 



This proposition is founded upon such ele- 
mental principles that it seems hardly neces- 
sary to have referred to it. 



— 56 — 



immunities of sovereignty in respect there- 
of. 

SECTION II.— TREATIES. 



Article 282. There are here designated 
twenty-six multilateral treaties, conven- 
tions and agreements of an economic and 
technical character, which, it is declared, 
shall alone be applied as between Ger- 
many and those Allied and Associated 
Powers parties thereto. They include 
conventions relating to international pro- 
tection of cables, birds, minors, to motor- 
cars, railways, customs inspection, tolls, 
tonnage, measurement of vessels, collisions 
and salvage at sea, the metric system, phar- 
macopoeial firmulae for potent drugs, ag- 
riculture, the establishment of a concert 
pitch; for the suppression of white phos- 
phorus in the manufacture of matches, ob- 
scene literature, white slavery and phyl- 
loxera; and relating to other subjects. 



The recital of international agreements of 
general concern set out as surviving the war 
and binding Germany looks to Article 24 of 
Part I (The Covenant of the League of Na- 
tions) of the Treaty, where it is declared 
all international bureaux shall be placed un- 
der the direction of the League. 

Some idea of the magnitude of the pro- 
posed League's labors in fields other than 
those political may be obtained from this 
Article. 

To what extent these conventions would be 
energized with a resultant conflict with inter- 
nal authority in the respective states is a 
matter of opinion. It can not be doubted, 
however, that each would occupy a separate 
department, under a separate head, with its 
corp3 of experts and agents. 



Articles 283-285. Further international trea- 
ties are designated herein which are to 
come into force conditionally, including 
the Postal, Telegraphic and Radio-Tele- 
graphic conventions. 

Article 286. The conventions of 1883 and 
June 2, 1911, for the protection of indus- 
trial property; of Berne, 1886, for the 
protection of literary and artistic work, 
and of 1908 and 1914, relating to the 
same subjects, are revived, subject to ex- 
ceptions and restrictions contained in the 
treaty. 



By paragraph 15 of Annex I, Section IV, 
Article 297, the industrial, literary and artis- 
tic property of German nationals within the 
territories of Allied and Associated govern- 
ments and ceded German territories is denied 
the protection of the conventions mentioned 
in Article 286 and is declared confiscable. 

These treaties were made with the object 
cf the permanent protection of these classes 
of private property and can not be consid- 
ered as abrogated by the supervention of 
war, although their operation between sig- 
natories was necessarily suspended. (5 
Moore, 376-377.) At the times of negotia- 
tion of the treaties it was fully realized that 
private property of all kinds was under the 
protection of the law during war and that 
must be considered as assumed in the indefi- 
nite duration agreed on as to the continu- 
ance of such treaties. (See 3 Malloy, Trea- 
ties, etc., Article 17*4 p. 375.) 

The action of the Allied and Associated 
governments in respect of Germany is plain- 
ly, therefore, a violation of the treaty. 



Article 287. The convention of The Hague 
of July 17, 1905, relating to civil proce- 
dure is revived, though not applicable to 
France, Portugal and Rcumania. 



What, it may be asked, is the status of the 
dozen other highly important Hague Conven- 
tions, including the whole code of the law of 
land warfare? All except that for the pa- 
cific settlement of international disputes ap- 
pear to be discarded. (See Comment op- 
posite Article 13.) 



- 57 



Article 288. Special rights and privileges 
granted to Germany by the treaty of De- 
cember 2, 1899, in Samoa shall be con- 
sidered terminated as of August 4, 1914. 



This was the tripartite treaty between the 
United States, Great Britain and Germany, 
relieving the United States from an entang- 
ling and vexatious joint control of the Sa- 
mcan Islands and dividing them between the 
three powers. Germany received Upolu, 
Savaii and all other islands west of longitude 
171 west of Greenwich. (See Introduction 
to C. K. Davis, International Law.) 

Reciprocal privileges of trade were grant- 
ed. (Compare this Article as to date of ter- 
mination of Germany's privileges with Article 
156.) 



Article 289. Each Allied and Associated 
power shall notify to Germany the bilateral 
treaties or conventions it wishes to revive 
with Germany. 



As to the effect of the outbreak of war on 
treaties, there is a lack of agreement among 
the authorities as to whether certain classes 
of treaties are merely suspended or annulled 
so as to require re-negotiation. 

This much is certain: 

(a) Dispositive treaties, setting up a per- 
manent condition of things, such as those of 
cession, boundary, independence, neutral- 
ity and the like are unaffected. (Soc. for 
Prop, of Gospel vs. New Haven, 8 Wheaton 
464, 494; Scott, Cases, 428.) 

(b) Law-making treaties to which third 
powers are parties, such as the Hague, 1899 
and 1907, Postal Union, Industrial Property, 
and the like remain in force, though sus- 
pended in operation as between belligerent 
signatories. (Hershey, Essentials of Pub. 
Int. Law, p. 361.) 

(c) Conventions entered into with a view 
to hostilities become operative. 

(d) Political treaties, such as alliance, are 
abrogated. 

(e) Treaties of commerce, navigation, etc., 
may be treated as annulled or suspended or 
continuing at the will of the belligerents, 
signified in the treaty of peace. (5 Moore, 
376, 377.) 



Treaties and treaty provisions in conflict 
with the Treaty of Peace shall not be re- 
vived. 



The United States maintained in 1898 that 
the last mentioned class of treaties was mere- 
ly suspended, but yielded to Spain's insistence 
that they be considered abrogated, in accord- 
ance with the Spanish decree of April 23, 
1898. 

In the present treaty Germany has nothing 
to say; it is for the Allied and Associated 
governments alone to revive or abrogate any 
or all of its bilateral treaties with Germany. 

Thus the rule of law is left even more in 
doubt than before. 



All bilateral treaties not notified as re- 
vived within six months shall remain abro- 
gated. 

The above provisions shall apply even 



Uruguay, Ecuador and Bolivia, who are 



— 58 — 



as between an Allied and Associated Pow- 
er that was not at war with Germany. 



Allied and Associated Powers, did not declare 
war on Germany, but merely severed diplo- 
matic relations. To deal with them as bel- 
ligerents with respect to their treaty rela- 
tions is most unusual. The situation might 
have been met with more consistency by a 
declaration that Germany agreed to a revi- 
sion of the treaties in accordance with their 
wishes and the requirements of the Treaty of 
Peace. 

Yet the conclusion of a treaty of peace 
with Germany on the part of these three 
rtates which have not been at war with 
Germany is even more remarkable. 



Article 290. Germany recognizes that all 
treaties, agreements, etc., concluded with 
Austria, Hungary, Bulgaria or Turkey since 
August I, 1914, are abrogated. 

Article 291. Germany undertakes to secure 
to Allied and Associated governments and 
nationals all privileges granted to Austria, 
Hungary, Bulgaria or Turkey or their na- 
tionals so long as such privileges are en- 
joyed by the latter. 



Article 292. Germany recognizes that all 
treaties and agreements concluded with 
Russia or with Roumania are abrogated. 



See Comment opposite Article 128. 



Article 293. Any concession, privilege or 
favor which any Allied or Associated Pow- 
er, Russia or Russian state has been forced 
to grant Germany or a German national 
since August I, 1914, by reason of mili- 
tary occupation, or otherwise, is annulled. 
No claims shall result from this annulment. 



Article 294. Germany undertakes to grant 
to Allied and Associated Powers and their 
nationals the benefit ipso facto of rights 
and advantages of any kind granted to neu- 
trals in the war, so long as such rights 
remain in force. 



Through this provision will be revealed the 
price, if any, paid by Germany for the neu- 
trality of any European state. 

The acquisition of such rights and privi- 
leges, if any exist, can hardly be justified as 
reparation. 



Article 295. Those of the High Contracting 
parties who have not yet signed and rati- 
fied the Opium Convention of January 23, 
1912, agree to bring the convention into 
force within twelve months. Ratification 
of the present treaty shall be considered 
ratification of the Opium convention. 



SECTION III.— DEBTS. 



Article 296. This Section dealing with debts 
due to and from the respective nationals 
of Allied and Associated governments and 
Germany has been referred to in Article 
74, supra. 



See Comment opposite Article 74. 



— 59 — 



SECTION IV.— PROPERTY, RIGHTS AND 
INTERESTS. 



Article 297. This Section, declaring the pur- 
pose of universal retention of all private 
German property in the hands of Allied 
and Associated governments and else- 
where, while committing Germany to res- 
titution and compensation in the matter of 
private property of Allied and Associated 
nationals, has been referred to in Article 
74, supra. 

SECTION V.— CONTRACTS, PRESCRIP- 
TIONS, JUDGMENTS. 

Article 299. Contracts between enemies 
shall be considered dissolved, except in re- 
spect of a debt arising out of an act done 
or money paid thereunder. Other excep- 
tions are indicated. 

The United States, Brazil and Japan are 
excepted from the operation of this Ar- 
ticle. 



See Comment opposite Article 74. 



The United States Supreme Court has re- 
peatedly held that war does not dissolve or 
annul contracts entered into before the war; 
that they are merely suspended and that a 
right of suit revives with the peace. (Wil- 
liams vs. Paine (1887), 169 U. S. 55) And 
so far as resident alien enemies are con- 
cerned contracts with them are wholly unaf- 
fected (McVeigh vs. U. S., 11 Wall. 259.) 

It therefore became impossible to commit 
the United States to a policy of dissolution 
of contracts as desired by the other Allied 
and Associated Powers without running 
counter to the law of the United States. 

The participation of Great Britain in this 
action is likewise in contravention of long- 
established British law and policy. (See 2 
Westlake, p. 48; 2 Oppenheim 138.) 



Article 300. This deals with periods of pre- 
scription or limitation of right of action 
as to contracts excepted from the general 
policy of dissolution. 

Article 301. As between enemies no nego- 
tiable instrument made before the war shall 
be deemed to have become invalid by rea- 
son of failure within the required time to 
present it for acceptance or payment or to 
give notice. 



Article 302. Judgments given by courts of 
Allied and Associated Powers shall be rec- 
ognized by Germany as final. Judgments 
of German courts shall not be thu3 recog- 
nized. 

ANNEX.—-GENERAL PROVISIONS. 

The following classes of contracts are 
excepted from dissolution without preju- 
dice to the right of confiscation, referred 
to in Article 29 7: 

(a) Those having as their object the 
transfer of real estate or personal property 
where the object had passed before the 
supervention of way; 

(b) Leases and agreements for leases 
of land and houses; 



It appears, therefore (Subsection (e) An- 
nex I), that at least some forms of private 
enemy debts are to be confiscated, and that 
the United States is a party to the policy 
along with the other Allied and Associated 
Powers. Yet it is the settled law of the 
United States that they may not be. 

By every nation, whatever its form of gov- 
ernment, the confiscation of debts has long 
been considered disreputable. Wilson, J., in 
Ware vs. Hylton (1796), 3 Dall. 199, 281. 

The Conqueror is denied the right to con- 
fiscate private property, on the ground that 
it would violate "the modern usage of na- 
tions which has become law." Marshall, C. 
J., U. S. vs. Percheman, 7 Peters, 51. 

(See also Planters' Bank vs. Union Bank, 
16 Wall. 483; Williams vs. Bruffy, 96 U. S. 
176, 186-188.) 



— 60 — 



(c) Contracts of mortgage, pledge or 
lien; 

(d) Concessions concerning mines, 
quarries or deposits. 

(e) Contracts between individuals or 
companies and states, provinces or other 
similar juridical persons, and concessions 
granted by states, provinces or other jurid- 
ical persons. 

These are excepted from dissolution 
without prejudice to the right of seizure 
and retention provided for in Article 297. 

Rules made by recognized Exchanges for 
closure of enemy contracts are confirmed, 
including the closure of cotton "futures" 
on July 31, 1914, by the Liverpool Cot- 
ton Association. 

No claim on the ground of sale of secur- 
ity shall be admitted if the creditor acts 
in good faith. 

If a person before or during the war be- 
came liable on a negotiable instrument in 
accordance with an undertaking of a per- 
son who subsequently became an enemy, 
the latter shall remain liable. 



SECTION VI.— MIXED ARBITRAL 
TRIBUNAL. 



Articles 304-305. These Articles, together 
with an annex, provide for the setting up 
of a Mixed Arbitral Tribunal between each 
of the Allied and Associated Powers on 
the one hand and Germany on the other, 
to decide all questions within their com- 
petence under Sections III, IV, V and VII, 
relating to Debts, Property, Rights and In- 
terests, Contracts, Prescriptions and Judg- 
ments and Industrial Property. 

The Mixed Arbitral Tribunals are pri- 
marily an appellate body to which disputes 
arising in the "Clearing Offices" may be 
taken. 

Appeals may also be taken to these tri- 
bunals from judgments of German courts 
inconsistent with the terms of the treaty; 
not, however, from Courts of Allied and 
Associated governments. 

They may adopt such rules of procedure 
as are in accordance with justice and 
equity. 



These bodies do not deserve the appella- 
tion of "tribunals" in view of the limitations 
upon their powers to decide controversies in 
accordance with law. This inability is inher- 
ent in the settlement which is the negation of 
law. It will be observed each is empowered 
to adopt its own rules of procedure instead 
of applying the system, together with the 
law, ready at hand in The Hague Convention 
of 1907, establishing a Court of Arbitral 
Justice, the achievement of the American 
delegation. 

The object of its establishment was to re- 
place international settlements based on com- 
promise and expediency by settlements found- 
ed upon judicial determinations, to the end 
that the universal reign of law might be 
promoted. 



SECTION VII.— INDUSTRIAL PROPERTY. 



Articles 306-311. Conventions for the pro- 
tection of industrial, literary and artistic 
property, mentioned in Article 286, shall 
be re-established between the High Con- 
tracting parties. 



The subject of the protection of industrial, 
literary and artistic property has been re- 
ferred to in the discussion of Article 298 and 
the Annex thereto. 

The policy of Allied and Associated coun- 



61 — 



Nevertheless, all acts done, or to be 
done, in Allied and Associated countries 
in respect of such property of German na- 
tionals shall have full force and effect. 

No claims on account of such acts shall 
be allowed. 

Any sums due for the use of such Ger- 
man property shall be treated as other 
German property. 

The provisions of the Article shall not 
apply to rights in industrial, literary or 
artistic property which have been dealt 
with through liquidation of businesses or 
companies. 



tries with respect to such German property, 
including patents, during the war, was, with 
the exception of that in liquidation, to per- 
mit its use under an obligation to pay at the 
peace a fair compensation. The patentees 
and other German owners will not, however, 
receive such sums in view of the requirement 
of payment to the Reparation Commission 



SECTION VIII.— SOCIAL AND STATE IN- 
SURANCE IN CEDED TERRITORIES. 

Article 312. Germany undertakes to trans- 
fer to any Power to which German terri- 
tory is ceded and to any mandatory such 
portion of reserves accumulated by the 
government or by private organizations as 
is attributable to the carrying on of 
social or state insurance. 

These sums must be applied to the per- 
formance of the obligations arising under 
such insurances. 



PART XL— AERIAL NAVIGATION. 



Articles 313-320. Aircraft of Allied and 
Associated Powers shall have full liberty of 
passage and landing over and in the terri- 
tory and territorial waters of Germany, and 
shall enjoy the same privileges as German 
aircraft. 

All public aerodromes in Germany shall 
be open to aircraft of Allied and Associat- 
ed Powers. 

Any regulations applied by Germany to 
aircraft of Allied and Associated Powers 
shall apply equally to German aircraft. 

As regards commercial air traffic, air- 
craft of Allied and Associated Powers 
shall enjoy most-favored-nation treatment. 

Germany shall require all German air- 
craft flying over her territory to comply 
with all the rules as to lights, signals, etc., 
laid down in the Convention relative to 
aerial navigation concluded between Al- 
lied and Associated governments. 

All of these obligations remain in force 
until January 1, 1923, unless before that 
time Germany is admitted to the League 
of Nations or shall have been authorized 
to adhere to the Convention relative to 
aerial navigation. 



The convention relative to aerial naviga- 
tion concluded by the Allied and Associated 
Powers recognizes at the outset that every 
state possesses complete and exclusive juris- 
diction in the air space above its territory 
and territorial waters, and it deals with the 
subject by analogy to customary control ex- 
ercised over territorial waters, recognizing the 
right of innocent passage, making require- 
ments for registry, nationality markings, logs, 
lights, signals, etc. 

By the terms of Articles 313-320, German 
sovereignty over her aerial space is set aside, 
at leact, until January 1, 1923. 



— 62 — 



PART XII— PORTS, WATERWAYS AND 
RAILWAYS. 

SECTION I.— GENERAL PROVISIONS. 



Articles 321-326. Germany undertakes to 
grant freedom of transit through her ter- 
ritories by rail, waterway or canal, to per- 
sons, goods, vessels, carriages, wagons and 
mails coming from or going to any Allied 
or Associated Power. They shall be sub- 
jected to no transit duty, delays or restric- 
tions, and shall be entitled to national 
treatment. 

Goods in transit shall be exempt from 
customs and similar duties. 

No control shall be maintained over 
transmigration traffic beyond that neces- 
sary to insure that passengers are bona 
fide in transit. 

No discrimination or preference in du- 
ties, charges or prohibitions relating to im- 
portations or exportations from her terri- 
tories may be made. Nor may any surtax 
against the ports or vessels of any Allied 
or Associated Power be levied. 

The transport of perishable goods shall 
be promptly facilitated. 

Seaports of Allied and Associated Pow- 
ers are entitled to all favors and reduced 
tariffs granted on German railways or nav- 
igable waterways for the benefit of Ger- 
man ports or any port of another Power. 

The provisions of these Articles are sub- 
ject to revision by the Council of the 
League of Nations after five years. Fail- 
ing such revision no Allied or Associated 
Power can claim the benefits of these ar- 
ticles without reciprocity after five years. 



See Comment opposite Articles 264-270. 



SECTION II.— NAVIGATION. 



CHAPTER I.— FREEDOM OF NAVIGATION 



Article 327. Nationals of Allied and Asso- 
ciated Powers and their vessels shall enjoy 
in all German ports and inland water 
routes the same treatment as German na- 
tionals, vessels and property, including 
transport of goods and passengers to and 
from ports and places in Germany. Equal- 
ity of treatment shall extend to all facili- 
ties and charges. 

Should Germany extend preferential 
treatment to one Allied or Associated 
Power it shall automatically extend to all. 

These privileges shall be subject to re- 
vision by the Council of the League of 
Nations after five years. Failing such revi- 
sion, their enjoyment shall depend upon 
reciprocity. 



The exclusive right of a state to control 
its coasting trade, including that in inland 
waters, is an essential incident to its terri- 
torial supremacy. The law of nations, there- 
fore, recognizes the right of a state to ex- 
clude foreign vessels from such navigation 
and trade. (1 Oppenheim, pp. 257-258.) 
This right was formerly held to apply even 
as between a state and its colonies. (See 
Wheaton, 5th ed., pp. 765-766.) 

The provisions of Article 327 constitute a 
further invasion of German sovereignty dur- 
ing their continuance. 

As to the economic privileges they are in 
the nature of indemnity. 



CHAPTER II.— FREE ZONES IN PORTS. 



Articles 328-330. These Articles provide for 



Ibid. 



— 63 — 



the maintenance of free zones in German 
ports on August 1, 1914, and the granting 
of economic privileges in the same, as well 
as in others established by the treaty. 

The duration and conditions are the 
same as mentioned supra, Article 32 7. 



See Article 65. 



CHAPTER III.— CLAUSES RELATING TO 
THE ELBE, THE ODER, THE N IE- 
MAN AND THE DANUBE. 



( 1 ) GENERAL CLAUSES. 

Articles 331-338. The rivers mentioned in 
the title are declared international within 
certain boundaries, together with the lat- 
eral canals and channels. 

The nationals, property and flags of all 
Powers shall be treated on a footing of 
perfect equality. Nevertheless German 
vessels shall not, for five years, carry pas- 
sengers or goods between ports of Allied 
or Associated Powers without the author- 
ity of such Power. 

Charges shall be based only on cost of 
maintenance and improvement of navigable 
conditions. 

The General Convention of the Allied 
and Associated Powers relating to the 
waterways in question will become the con- 
trolling act when approved by the League 
of Nations. 



Compare with internationalization of Rhine 
and Scheldt by Congress of Vienna, 1815. 
(Martens, N. R. II, pp. 379, 427; Wheaton's 
History, 282-284, 552.) 

Previous to the Congress of Vienna, the 
use of great international European rivers as 
well as international straits was subject to 
tolls levied not only for purposes of main- 
tenance of navigation, but for revenue as 
well. (1 Moore, Sec. 134.) 

The principle may now be said to be set- 
tled, however, that navigation of rivers that 
traverse more countries than one is open to 
all states upon equal terms, and that tolls 
may not be levied for profit. (1 Westlake, 
Ch. VIII.) 



Article 339. Germany shall cede to Allied 
and Associated Powers within three months 
after ratification a proportion of tugs and 
vessels registered in ports of river sys- 
tems referred to in Article 331, in addi- 
tion to those mentioned (Part VIII, Annex 
III) and including facilities, to be deter- 
mined by an arbitrator or arbitrators nom- 
inated by the United States, due regard 
being paid to the needs of the parties con- 
cerned. 

Indemnification of private owners shall 
be a matter for Germany to deal with. 



See Part VIII, Annex III, following Article 
242, and Comment, supra. 

It is difficult to explain upon what grounds 
this Article is founded other than upon in- 
demnity and the purpose of Allied and Asso- 
ciated Powers to consolidate their economic 
advantages in Europe. 



(2) Special clauses relating to the Elbe, 
the Oder and the Nieman. 

Articles 340-341. These Articles place the 
Elbe and Oder under the administration 
of international commissions and fix rep- 
resentation upon the commissions. 

Articles 342-345. Upon request by a ripa- 
rian state the League of Nations will insti- 
tute an international Commission for the 
Nieman composed of the representative 
from each riparian state and three others. 
Such Commissions will prepare projects 
for revision of systems in force in accord- 
ance with the General Convention referred 
to in Article 338. 



— 64 — 



ube 



(3) Special Clauses relating to the Dan- 



Articles 346-353. The European Commis- 
sion of the Danube reassumes the powers 
it possessed before the war. Neverthe- 
less, as a provisional measure, Germany 
shall not be represented thereon. Where 
the competence of the old Commission 
ceases an international Commission re- 
ferred to in Article 331, shall direct the 
administration, composed of tv/o Germans, 
one representative of each other riparian 
state, and one representative of each non- 
riparian state represented on the old Com- 
mission. 

The mandate given Austria-Hungary by 
the Treaty of Berlin of 1878 to carry out 
works at the Iron Gates is abrogated. 

Germany shall make restitution, repara- 
tion and indemnities for damages inflicted 
on the European Commission of the Dan- 
ube during the war. 



The European Danube Commission was in- 
stituted by the Treaty of Paris of 1856, and 
reconstituted by the Treaty of Berlin, 1878, 
and again in London in 1883. It was made 
independent of the territorial governments, 
its members, offices and archives enjoying in- 
violability. Its competence extended from 
Ibraila downwards to the mouth of the Dan- 
ube. (I Twiss, Sees. 150-152.) 

During the war the Commission ceased to 
function owing to Germany's violation of the 
treaty. It was to all intents and purposes 
abolished with Germany substituted in its 
stead. 



CHAPTER IV.— CLAUSES RELATING TO 
THE RHINE AND THE MOSELLE. 



Articles 354-356. The Convention of Mann- 
heim of October 17, 1868, creating a Cen- 
tral Commission of the Rhine, shall be- 
come operative, subject to modification 
according with the General Convention 
previously referred to. 

The Commission shall consist of four 
representatives of German riparian states, 
four of France, one of whom shall be 
president, and two each of Holland, Switz- 
erland, Great Britain, Italy and Belgium. 
Certain articles of the Mannheim Conven- 
tion are abrogated in the interest of free 
navigation. 



The Rhine became free as an international 
river by a declaration of the Congress of 
Vienna, but the enjoyment of this status was 
long in question owing to a dispute over 
phraseology concerning the rights of regu- 
lation confided to co-riparian powers. 

In the settlements attempted in the present 
treaty it is questionable whether the co-ripa- 
rian states are recognized in the administra- 
tion to the extent to which principle and 
custom entitle them. 



Article 35 7. Within three months from date 
of notice Germany shall cede to France 
tugs and vessels registered in Rhine ports, 
from among those remaining after satis- 
fying previous articles, including installa- 
tions, berthing and anchorage accommo- 
dations, or shares in German Rhine naviga- 
tion companies, the amounts to be deter- 
mined by an arbitrator or arbitrators ap- 
pointed by the United States. 

The same shall apply to cessions in the 
port of Rotterdam. 

Credit shall be allowed on the repara- 
tion account. 



See Part VIII, Annex III, following Article 
242. 

See Comment opposite Article 339. 



Article 358. Subject to provisions in pre- 
ceding Articles, France shall have the ex- 
clusive right to power derived from Ger- 
man works on the river within the two 
extremes of the French frontier. A pay- 
ment of one-half the value of power taken 
from Germany shall be made by France. 

Germany will construct no lateral canal 
on the right bank of the Rhine, but recog- 



These provisions are plainly in contraven- 
tion of the understood rights of a co-riparian 
state. 



— 65 — 



nize the right of France to fix the limits 
of necessary sites and occupy lands inci- 
dent to the building and operations of wiers 
which France, subject to the Central Com- 
mission, may establish. 

Germany shall make it her business to 
indemnify any proprietors burdened with 
such servitudes. 

\rticle 361. Germany shall construct in her 
territory the necessary portion of a deep- 
draught Rhine-Meuse Canal should Belgium 
desire same within twenty-five years. 

\rticle 362. Germany will not oppose the 
extension of the jurisdiction of the Cen- 
tral Rhine Commission to the Moselle, be- 
low the Franco-Luxemburg frontier and to 
the Rhine above Basle to Lake Constance 
and to lateral canals. 

:hapter v.— clauses giving the 

czecho-slovak state the use 

of northern ports. 



\rticles 363-364. Germany shall lease for 
99 years to the Czecho-Slovak state areas 
in Hamburg and Stettin, to be placed un- 
der the general regime of free zones. 

Delimitation of such areas, etc., shall 
be under the control of a Commission con- 
sisting of one German, one Czecho-Slovak 
and one British representative. 



These clauses are reminiscent of the oper- 
ations of the European powers in China be- 
ginning in 1398. (See 5 Moore, 471 et seq., 
534.) 



section iii.— railways. 

:hapter i.— clauses relating to 
international transport. 



Articles 365-369. Germany submits to a 
great variety of regulations intended to 
extend the economic privileges of Allied 
and Associated governments on German 
railways, the privileges to be revised with- 
in five years by a general convention 
which will bind Germany whether she ad- 
heres or not. 

Germany shall co-operate in establish- 
ing through ticket service required by any 
Allied or Associated government to insure 
communication with each other, and shall 
accept trains and forward them with a 
speed equal to her best trains. 

No special regulations shall be applied 
to such service by Germany which will 
impede or delay it. 



This is a further extension of economic 
advantage, no reciprocity being granted. 



CHAPTER II.— ROLLING STOCK. 



Article 370. Germany will adapt her rail- 
way systems to the physical requirements 
of Allied and Associated Powers, the roll- 
ing stock of the latter to enjoy equal 



— 66 — 



treatment with the German, as regard* 
movement, upkeep and repairs. 

CHAPTER III.— CESSION OF RAILWAY 
LINES. 

Article 371. Railways in ceded German pos- 
sessions shall be handed over in good con- 
dition and with complete rolling stock; as 
to lines having no rolling stock commis- 
sions shall fix the quantity to be supplied. 

CHAPTER IV.— PROVISIONS RELATING 
TO CERTAIN RAILWAY LINES. 

Articles 372-374. Provision is here made 
for the regulation of railway lines at fron- 
tiers; for the construction of new lines and 
the conditional denunciation of the St. 
Gothard railway convention. 

SECTION IV.— DISPUTES AND REVISION 
OF PERMANENT CLAUSES. 

Articles 376-377. To the League of Nations 
is confided settlement of disputes under 
these Articles, together with a right to re- 
vise the same at any time. 

SECTION V.— SPECIAL PROVISION. 

Article 379. Germany undertakes to adhere 
to any conventions relating to transit, 
waterways, ports or railways concluded by 
the Allied and Associated Powers, with the 
approval of the League of Nations, within 
five years. 

SECTION VI.— CLAUSES RELATING TO 
THE KIEL CANAL. 

Articles 380-386. The Kiel Canal is by 
these Articles placed in the category of an 
international one, as to tolls, etc., though 
Germany's sovereignty over both banks is 
recognized to the extent of permitting its 
closure against states at war with Ger- 
many and limiting the rights of loading 
and unloading of goods and passengers to 
certain ports specified by Germany. 



PART XIII.— LABOR. 

PART XIV.— GUARANTEES. 

SECTION 1 .—WESTERN EUROPE. 



Article 428. As a guarantee for the execu- 
tion of the present treaty, the German 
territory situated to the west of the Rhine, 
together with the bridgeheads, will be oc- 



The Articles respecting guarantees can 
best be dealt with in their entirety. 

Many means have been resorted to in the 
past for compelling performance of the con- 



— 67 



cupied by Allied and Associated troops 
for a period of fifteen years from the com- 
ing into force of the present treaty. 

Article 429. If the conditions of the pres- 
ent treaty are faithfully carried out by 
Germany the occupation referred to in Ar- 
ticle 428 will be successively restricted as 
follows: 

( 1 ) At the end of five years there will 
be evacuated the bridgehead of Cologne 
and territories north of a line running 
along the Ruhr, etc. 

(2) At the end of ten years there will 
be evacuated the bridgehead of Coblenz, 
and territory north of a line to be drawn 
from the intersection between the frontiers 
of Belgium, Germany and Holland, run- 
ning about 4 kilometers south of Aix-la- 
Chapelle, etc. 

(3) At the end of fifteen years there 
will be evacuated the bridgeheads of Mainz 
and Kehl and the remainder of German 
territory. 

If at that date the guarantees against 
unprovoked aggression by Germany are not 
considered sufficient by the Allied and As- 
sociated governments, the evacuation of oc- 
cupying troops may be delayed to the ex- 
tent regarded necessary to obtain the re- 
quired guarantees. 

Article 430. If during occupation or after 
the expiration of fifteen years the Repara- 
tion Commission finds that Germany re- 
fuses to observe the whole or part of her 
obligations under the treaty, the whole or 
part of the areas specified will be re-occu- 
pied immediately by the Allied and Asso- 
ciated Powers. 

Article 431. If before the expiration of fif- 
teen years Germany complies with all the 
undertakings resulting from the treaty, the 
occupying forces will be withdrawn imme- 
diately. 

Article 432. All matters pertaining to oc- 
cupation not provided for in the treaty 
shall be regulated by subsequent agree- 
ments which Germany undertakes to ob- 



ditions of peace imposed. They have in- 
cluded placing the engagements under the 
aegis or religion, with the kissing of the 
cross and the administration of the oath 
(Bonfils, Paris, 1912, p. 526); the giving and 
receiving of hostages, as when Henry Vill 
gave to Francis I, in 1527, two archbishops, 
eleven bishops, eight nobles as well as thir- 
teen towns; the giving of a pledge as when 
the diamonds of the crown of Poland were 
given to Prussia; guarantees by third states, 
as that in the treaty of neutralization of Bel- 
gium of April 19, 1839, relating to the sep- 
aration of the latter from Holland. (Termi- 
nation of War, etc., Phillipson, pp. 207, et 
seq.) Military occupation of a part of a 
state's territory has been the most usual 
mode during the last century where guaran- 
tees were required. 

Thus by the Treaty of Paris, November 20, 
1815, after the final overthrow of Napoleon, 
Great Britain, Austria, Prussia and Russia 
stipulated for the occupation of positions 
along the French frontier with a force of 
150,000 men, holding twenty fortresses. The 
maximum period of occupation was limited 
to five years, and might be terminated earlier. 
An indemnity of 700,000,000 francs had 
been imposed, and in addition France was 
required to pay 50,000,000 francs annually 
toward maintenance of the occupying forces. 
Civil and judicial administration, collection 
of taxes, customs and police, were to con- 
tinue in the occupied area as before. Evac- 
uation did not hinge on the payment of the 
indemnity, bui: primarily upon the restora- 
tion of internal tranquility and the suppres- 
sion of revolutionary agitation which the 
Grand Allies feared might spread to their 
own countries. (A. Sore!, Hiatoire, Paris, 
1875, Vol. II, pp. 355-356.) In fact the in- 
demnity had not been paid at the time of 
evacuation. 

An instance bearing closer analogy to the 
present is found in the Treaty of Frankfort 
of 1871, by which an indemnity of 5,000,- 
000,000 francs was exacted, with payment 
demanded as fellows: 500,000,000 in 30 days; 
1,000,000,000 within one year; 500,000,000 
on May 1, 1872; 3,000,000,000 on March 2, 
1874, with interest at 5 per cent. Meantime 
German troops were to remain in occupa- 
tion of French territory at the expense of 
France, with provision for evacuation only as 
the installments were paid. The occupying 
forces were reduced successively from 500,- 
000 men and 150,000 horses to 150,000 men 
and 50,000 horses, to 120,000 men and 40,- 
000 horses, to 80,000 men and 30,000 horses. 
The period of occupation was shortened by 
the rapidity with which France was enabled 
to discharge the indemnity. 

There are other instances of occupation 
as a guarantee as in the Chino-Japanese war 
of 1895, where China, by the terms of the 
Treaty of Shimonoseki, was required to pay 
200,000,000 taels, and the Greco-Turkish 
war, where by the Treaty of Constantinople 



— 68 — 



SECTION II.— EASTERN EUROPE. 

Article 433. As a guarantee of the provi- 
sions abrogating the treaty of Brest-Lit- 
ovsk and all other agreements with the 
Maximalist government of Russia, and to 
insure peace in the Baltic Provinces and 
Lithuania, all German troops at present in 
such territories shall return within Ger- 
many's frontiers as soon as the Principal 
Allied and Associated governments think 
the moment suitable. These troops shall 
abstain from requisitions and shall in no 
way interfere with measures for national 
defense adopted by the provisional govern- 
ments of Esthonia, Latvia and Lithuania. 
No other German troops shall be sent to 
these territories. 

PART XV.— MISCELLANEOUS PROVI- 
SIONS. 



of 1897 Greece was required to pay $20,- 
000,000. 

The present treaty requires Germany to 
pay as "reparation" certain definite sums 
and others to be computed by a Reparation 
Commission upon inquiry into her capacity 
to pay. As has been pointed out, while 
some of these demands are designated as 
"reparation" the term "indemnity" is more 
fitting. 

Reparation connotes amends for legal 
wrongs; indemnity is founded in the mere 
exercise of power in excess of reparation 
with the object of self-enrichment. 

It will be observed that reservations occur 
in the Articles of guarantee whereby Allied 
and Associated troops may re-occupy Ger- 
man territory in any case of default within 
the fifteen years or afterwards, running into 
an indefinite future with the obligations im- 
posed upon Germany. 

Practically this reservation is of little value 
without the League of Nations or some such 
promise of permanence to the concert of 
Allied and Associated Powers. History at- 
tests that such coalitions are of brief dura- 
tion, that the interests even of allies conflict 
too frequently and too vitally in the vicissi- 
tudes of even a few years to permit of ex- 
pectation of permanency. Wherefore, and 
with the further object of recementing ami- 
cable relations as quickly as possible, prac- 
tical statesmanship has been on the side of 
terms of peace that might be met as quickly 
as possible, with safety. 

In some respects the present treaty is more 
severe than the Treaty of Frankfort of 1871, 
as, for example, in relation to occupation. 
It permits a greater degree of interference 
with the civil administration and authorizes 
the levying of requisitions upon the inhabi- 
tants, forbidden to Germany by Article VIII 
of the treaty of 1871. 



Article 434. Germany undertakes to recog- 



— 69 



nize the full force of treaties of peace and 
additional conventions of the Allied and 
Associated Powers with Germany's allies, 
and to recognize all disposition of terri- 
tories and the establishment of new states. 



Article 435, with Annexes I and II. These 
Clauses, incorporating verbatim memoires 
of France and Switzerland, relate to a 
change in the economic and political sit- 
uation of a portion of Savoy and the Gex 
district, established by the Congress of 
Vienna in 1815. Switzerland is willing, 
apparently, to concede economic readjust- 
ments, provided the guarantees of neutral- 
ity given in the treaties of 1815, and par- 
ticularly by the Declaration of November 
20 of that year, are recognized by all of 
the Allied and Associated Powers. 



A part of Savoy was neutralized by the 
Congress of Vienna in 1815, in connection 
with the neutralization of Switzerland, and 
certain free zones were established in which 
there should be exemption from transit dues. 
In 1860 France acquired Savoy from Sardinia, 
subject to these servitudes. 

It appears that Switzerland is willing to 
trade, submitting to economic readjustments, 
if the United States can be induced to join 
in the guarantee of her neutrality. This 
guarantee does not extend to the independ- 
ence of Switzerland, but it does include the 
integrity and inviolability of Swiss territory. 
It is a collective guarantee on the part of 
Great Britain, Austria, France, Portugal, 
Prussia, Spain and Russia. 

The Allied and Associated Powers refer 
to this guarantee, in Article 435, as one 
"constituting international obligations for the 
maintenance of peace." This would appear 
to relate forward to Article 21 of the League 
of Nations covenant as a "regional under- 
standing" the validity of which is not affected 
by the covenant. 



Article 436. The High Contracting parties 
declare and place on record that they have 
taken note of the Treaty of July 17, 1918, 
between France and the Prince of Monaco, 
denning their relations. 



Article 438. The Allied and Associated 
Powers except from the general policy of 
retention and liquidation of all German 
property, public and private, outside of 
Germany, the property of Christian reli- 
gious missions of German societies and 
persons. Such property will be handed 
over to boards of trustees appointed by 
the governments concerned. 



This relaxation of the policy of universal 
confiscation of German property appears to 
be an afterthought, a concession to argu- 
ments of German plenipotentiaries which 
could not in conscience be withheld. 



Germany waives all claims relating to 
this subject. 



Article 439. Germany undertakes to put 
forward no pecuniary claim against any 
Allied or Associated Power, including 
those not at war with her, on account of 
events which occurred at any time before 
the coming into force of the present 
treaty. 



Thus all pecuniary claims which Germany 
might prefer against Allied or Associated 
Powers are swept into oblivion. 



Article 440. Germany accepts and recog- 
nizes as binding all decrees and orders of 
Allied and Associated Powers concerning 
German ships and goods and the payment 
of costs made by their prize courts and 
undertakes to put forward no claims. 



In concluding peace, the signatory powers 
pledge themselves either impliedly or express- 
ly to regard as settled not only all of their 
differences existing before the war and lead- 
ing to it, but also all such mutual claims as 
may have arisen during the war in connec- 



— 70 



The Allied and Associated Powers, how- 
ever, reserve the right to examine all de- 
cisions and orders of German prize courts, 
whether affecting the rights of nationals of 
Allied and Associated Powers or neutral 
states. Germany undertakes to give effect 
to any recommendations made after exam- 
ination of such cases. 



tion with the conduct of hostilities. Al- 
though treaties of peace in the past have 
dealt with^ captures where no judgment of 
condemnation has been pronounced, none 
has ever contemplated a re-opening of cases 
where a judicial determination has been ar- 
rived at. It was accepted that such deter- 
mination once pronounced forever settled 
the property rights in question. 

The Article in question is therefore most 
unusual, but may be justified to the extent 
that it contemplates a reconsideration of the 
many cases involved in the unlawful destruc- 
tions of merchantmen by German submarines, 
and particularly any dicta attempting to up- 
hold them as valid. 

The Peace Conference might very wisely 
have taken up the whole subject of prize law, 
in this connection, calling into life The 
Hague Convention of 1907 establishing an 
International Court of Prize, and making pro- 
vision for the clarification and approximation 
of the law to juster standards; and the United 
States might then have realized its age long 
policy looking to the establishment of gen- 
eral immunity of private property as a prin- 
ciple of the law of maritime warfare. (7 
Mocre, 461). 



